HONG KONG SAR, CHINA Law and Practice Contributed by: Jocelyn Tsao and Philippa Hewitt, Withers
3.2 Steps Taken to Return Abducted Children Hague Convention Countries Hong Kong is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980, and the Child Abduction and Custody Ordi - nance Chapter 121 was enacted in 1997 to give effect to the Convention in Hong Kong. Therefore, where the child has been removed with - out consent to another country that is a signatory, or wrongfully retained in Hong Kong, it is possible to follow the relevant procedure. The Secretary for Justice is designated as the Central Authority of Hong Kong (in practice, this is the Depart - ment of Justice – DOJ). The central authorities will co-operate with each other to secure the prompt return of the child to its place of habitual residence. Steps to be taken include the following. • making an application to the High Court of Hong Kong by originating summons if the child has been wrongly removed or retained in Hong Kong, sup - ported by an affidavit; • informing the DOJ of the intention to make an application by filing the International Child Abduc - tion prescribed form; • the court has the power to make interim orders in addition to an order for return or otherwise; and • there is generally no oral evidence – the aim is to complete the matter within six weeks. Non-Hague Convention Countries Unfortunately, many of the countries with which Hong Kong has a close tie – notably China and Taiwan – are not signatories, and such cases are more problematic. However, a recent case has involved Taiwan, in which the Family Court Judge made it clear that the princi - ples of the Hague Convention would guide the courts in Hong Kong in such cases, and it was within the court’s jurisdiction to make a return and a non-remov - al order. The court ordered the immediate return of the child unless the abducting father could show that there was a grave risk of psychological harm upon
her return to Hong Kong: SWTQ v WE (Injunction; non- removal of child) [2022] HKFC 177. As with Hague cases, lawyers in the other jurisdiction would have to be involved in returning the child to Hong Kong. In other cases, particularly those involving unmarried parents, the inherent jurisdiction of the High Court in wardship has been invoked to assist in getting the abducted child back to Hong Kong: • YJH v LKHM (removal of child; wardship) [2019] HKFLR 418; • returned to Taiwan – C v N (children; wardship) [2016] HKFLR 125; and • WMB v EIYL (wardship; order to return child from Taiwan to Hong Kong) [2024] HKCFI 17733.3. 3.3 Hague Convention on the Civil Aspects of International Child Abduction As set out in 3.2 Steps Taken to Return Abducted Children , Hong Kong is a signatory of the 1980 Hague Convention. Free Legal Advice Article 26 of the Convention provides that each central authority (in Hong Kong, this is the DOJ, on behalf of the Secretary for Justice) shall bear its own costs in applying the Convention and that it may not require payment from the applicant under the Convention. However, Hong Kong has elected that it is not bound by this unless the costs are covered by legal aid. Such aid is available for relevant applications in Hong Kong. In order to qualify for legal aid, the applicant must pass the merit and means tests. In addition, even if legal aid is granted, the applicant may be required to pay a contribution towards the costs. In short, there - fore, free legal advice is hard to come by. There is a Bar Association Free Legal Scheme that provides free legal advice and representation in some cases. Certain solicitors’ firms may take the case on pro bono.
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