HONG KONG SAR, CHINA Law and Practice Contributed by: Jocelyn Tsao and Philippa Hewitt, Withers
The DOJ International Child Abduction website pro - vides information on making the applications under the Hague Convention. The Purpose of the Hague Convention The principle that the child should be returned prompt - ly to the child’s place of habitual residence is followed in Hong Kong courts. Approximately ten Hague cases were reported in Hong Kong between 2020 and 2024. In nine out of the ten cases, the child was ordered to return to their habitual place of residence. In the one case in which the Hague application was unsuccess - ful, this was because the court found that the asserted habitual residence had not acquired the necessary degree of stability to become habitual. The application must be made within a year of the date of removal; if longer than this, the court has dis - cretion as to whether it is still appropriate to return the child. Return may not be ordered if there was no breach of the rights of custody and/or access (where the appli - cant did not have rights of custody – this can be prob - lematic for unmarried fathers), or if it is found that the applicant had acquiesced to the move. Rarely will the defences to the Convention be suc - cessful – namely that there is a grave risk that the child’s return would expose them to physical or psy - chological harm or otherwise place the child in an intolerable situation under Article 13. In Re P [2004] 1 HKLRD 815, it was said that a “very high degree of grave risk of personal harm” had to be established. In M v E [2015] HKFLR 337, the Court of Appeal con - firmed that the risk had to be “grave”, which relates to the risk rather than the harm itself, although “harm” and “risk” are often linked. The harm is either the child’s physical or psychological harm, such that the child should not be reasonably expected to tolerate or put up with the situation. The court commented here that as the exception concerned the future return to the child’s home country, protective measures should be put in place by the court of that country. It would not include difficulties relating to accommodation and financial support. Such issues are generally to be dealt with in the other jurisdiction, where a proper removal application should have been made.
In EW v LP (International Child Abduction) [2013] HKFLR 135, the child was not returned for the rea - son that he would be put into an intolerable situa - tion due to his level of anxiety and fragility. Also, the formal application had been delayed for 11 months after removal, which suggested that the applicant had acquiesced. It was heard a further 17 months before the substantive hearing took place, despite directions from the court to set the matter down, due to delays relating to enquiries from the Slovak Central Authority, interlocutory applications and finding an appropriate date. Returning an Abducted Child to a Non-Convention Country To return a child to a non-Hague Convention country, the applicant will have to make an application to the court in Hong Kong. As the applicant is normally out - side Hong Kong, applications are generally made to the High Court and often involve wardship in order to ensure that the child cannot leave Hong Kong until the application to return has been dealt with. Applications under wardship or to the High Court are made by originating summons. It has been held in the family courts that the Hague principles will apply with due modification in an appro - priate case: YJH v LKHM [2019] HKCFI 2030 and C v N [2016] [2016] HKFLR 125. See also Q v J and Another (Abduction: China to Hong Kong) [2025] HKCFI 632. It was held in YJH that the principles of forum non conveniens were sufficient to deal with that case with - out resorting to the Convention authorities. In C v N , the High Court found that it was appropriate to apply the general principles of the Hague Conven - tion with some modifications: • the welfare of the child is paramount (Section 3 of the GMO); • the court would determine which is the more appropriate forum to decide the substantive issues relating to the child’s welfare;
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