CHILD ABDUCTION AND CUSTODY ORDINANCE - CHAPTER 512 CHILD ABDUCTION AND CUSTODY ORDINANCE - LONG TITLE Long title VerDate:05/09/1997 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. [5 September 1997] L.N. 439 of 1997 (Originally 49 of 1997) CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 1 Short title VerDate:05/09/1997 (1) This Ordinance may be cited as the Child Abduction and Custody Ordinance. (2) (Omitted as spent) CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 2 Interpretation VerDate:05/09/1997 Adaptation amendments retroactively made-see 25 of 1998 s. 2 In this Ordinance, unless the context otherwise requires- "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; "Rules Committee" (規則委員會) means the Rules Committee constituted under section 55 of the High Court Ordinance (Cap 4). (Amended 25 of 1998 s. 2) "the Convention" (《公約》) "Court of First Instance" (原訟法庭) "custody order" (管養令) "Rules Committee" (規則委員會) CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 3 Convention to have force of law in Hong Kong VerDate:05/09/1997 Subject to the provisions of this Ordinance, the provisions of the Convention as set out in Schedule 1 shall have the force of law in Hong Kong. [cf. 1985 c. 60 s. 1(2) U.K.] CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 4 Contracting States VerDate:05/09/1997 Adaptation amendments retroactively made - see 66 of 1999 s. 3 (1) For the purposes of the Convention as it has effect under this Ordinance, 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) (2) (a) 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. (b) 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. (3) 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.] CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 5 Central Authorities VerDate:05/09/1997 (1) The functions under the Convention of a Central Authority shall be discharged by the Secretary for Justice. (2) 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.] CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 6 Judicial authorities VerDate:05/09/1997 Amendments retroactively made-see 25 of 1998 s. 2 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.] CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 7 Interim powers VerDate:05/09/1997 Amendments retroactively made-see 25 of 1998 s. 2 Where an application has been made to the Court of First Instance under the Convention, the Court of First Instance may, at any time before the application is determined, give any interim direction as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application. (Amended 25 of 1998 s. 2) [cf. 1985 c. 60 s. 5 U.K.] CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 8 Reports VerDate:05/09/1997 Where the Secretary for Justice is requested to provide information relating to a child under Article 7(a) or (d) of the Convention, he may- (Amended L.N. 362 of 1997) (a) request- (i) the Director of Social Welfare; (ii) the Commissioner of Police; (iii) the Director of Immigration; (iv) 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; (b) 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.] CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 9 Proof of documents and evidence VerDate:05/09/1997 (1) For the purposes of 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. (2) 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. (3) 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.] CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 10 Declarations by Court of First Instance VerDate:05/09/1997 Amendments retroactively made-see 25 of 1998 s. 2 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.] CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 11 Suspension of court's powers in cases of wrongful removal VerDate:05/09/1997 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.] CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 12 Rules of court VerDate:05/09/1997 Amendments retroactively made-see 25 of 1998 s. 2 (1) The Rules Committee may make rules of court for giving effect to this Ordinance as appears to the Committee to be necessary or expedient. [cf. 1985 c. 60 s. 10(1) U.K.] (2) Without affecting the generality of subsection (1), the rules of court made by the Rules Committee may provide- (a) 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; (b) 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; (c) 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.] (3) 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) CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 13 Cost of applications VerDate:05/09/1997 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.] CHILD ABDUCTION AND CUSTODY ORDINANCE - SECT 14 Termination of existing custody's orders, etc. VerDate:05/09/1997 Amendments retroactively made-see 25 of 1998 s. 2 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.] CHILD ABDUCTION AND CUSTODY ORDINANCE - SCHEDULE 1 CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION VerDate:05/09/1997 [section 3] CHAPTER I-SCOPE OF THE CONVENTION Article 3 The removal or the retention of a child is to be considered wrongful where- (a) 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 (b) 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. Article 4 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. Article 5 For the purposes of this Convention- (a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; (b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence. CHAPTER II-CENTRAL AUTHORITIES Article 7 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- (a) to discover the whereabouts of a child who has been wrongfully removed or retained; (b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) to exchange, where desirable, information relating to the social background of the child; (e) to provide information of a general character as to the law of their State in connection with the application of the Convention; (f) 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; (g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; (i) 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. CHAPTER III-RETURN OF CHILDREN Article 8 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- (a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child; (b) where available, the date of birth of the child; (c) the grounds on which the applicant's claim for return of the child is based; (d) 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- (e) an authenticated copy of any relevant decision or agreement; (f) 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; (g) any other relevant document. Article 9 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. Article 10 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. Article 11 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. Article 12 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. Article 13 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- (a) 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 (b) 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. Article 14 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. Article 15 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. Article 16 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. Article 17 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. Article 18 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. Article 19 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. CHAPTER IV-RIGHTS OF ACCESS Article 21 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. CHAPTER V-GENERAL PROVISIONS Article 22 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. Article 24 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. Article 26 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. Article 27 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. Article 28 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. Article 29 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. Article 30 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. Article 31 In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units- (a) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State; (b) 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. Article 32 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. "rights of custody" "rights of access" CHILD ABDUCTION AND CUSTODY ORDINANCE - SCHEDULE 2 CUSTODY ORDERS VerDate:05/09/1997 Amendments retroactively made-see 25 of 1998 s. 2 [section 2] 1. An order made under section 10(1),11(1)(a),12(a) or 13(1)(b) of the Guardianship of Minors Ordinance (Cap 13). 2. An order made under section 5(b) of the Separation and Maintenance Orders Ordinance (Cap 16). 3. An order made under section 48A(1) of the Matrimonial Causes Ordinance (Cap 179). 4. An order made under section 19 or 20 of the Matrimonial Proceedings and Property Ordinance (Cap 192). 5. An order made under section 34(1)(a) or (b) of the Protection of Children and Juveniles Ordinance (Cap 213). 6. 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)