HONG KONG SAR, CHINA Law and Practice Contributed by: Jocelyn Tsao and Philippa Hewitt, Withers
• normally the child’s best interests are served by having their future determined in the jurisdiction of their habitual residence; • so long as the country from which the child has come applies the principles acceptable to the Hong Kong courts, subject to the matters to be considered under Article 13 or risk of persecution or discrimination, the child should be returned to their place of habitual residence; • it is for the abducting parent to prove that there is a defence to the child’s mandatory return and to justify why the child should stay in Hong Kong; • as with Hague applications, speed is of the essence; • in cases of return, it is normal practice of the courts to insist on undertakings to the court to safeguard the child’s welfare on return; • undertakings should not hamper the freedom of the foreign court – such undertakings should be simple, clear and easy to implement, and should mainly cover the interim period before the foreign court has had a chance to fully address the matter; and • the objection of the abducted child can be taken into account if the child is of sufficient age and maturity and is able to give valid reasons for their refusal to return to their place of habitual resi - dence.
In the same case, the children were returned to Tai - wan and the judge decided to temporarily exercise the wardship jurisdiction to ensure a smooth transition of moving the children from Hong Kong. The judge found that the children’s undoubted habitual residence was Taiwan, that the mother had not dem - onstrated otherwise, and that they had been removed in breach of the father’s rights of custody. There was no suggestion of persecution, discrimination or risk that the mother and children may face in Taiwan.
3.4 Non-Hague Convention Countries Hong Kong is a Hague Convention country.
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