HONG KONG SAR, CHINA Law and Practice Contributed by: Frederick Hui, Terence Luk, Serene Lam and Kenneth Yau, Zhong Lun Law Firm
Hong Kong’s Approach to Hague Convention Return Principle In theory, as noted in 3.2 Steps Taken to Return Abducted Children , Hong Kong aims at securing the prompt return of the abducted children – but what actually happens in real cases is more mixed. In an early case, S . v S . [1998] 2 HKC 316, the judge held that speed is of the essence in abduction cases, refus - ing to let lawyers cross-examine experts, and indicat - ed that even if a parent proved the child faced a grave risk of physical harm, the court would still exercise its discretion to order the child to be returned because abduction of a child should not be encouraged. In a similar case, LPQ v LYW , HCMP 2831/2014, the court applied the UK’s narrow Re E test – placing the burden on the abducting parent and requiring the risk to be “grave” rather than merely “real”, thereby setting a significantly higher threshold for any parent resisting return. But in several other cases, parents have successfully avoided returning the child: • In EW v LP , HCMP1605/2011, the court refused to send the child back because of the unexplained inaction and delay by the father that the child had already settled into a new life in Hong Kong. The court found that summary return of the child could not serve the objection of the Hague Convention nor is it in the interest of the child. • In LCYP v JEK [2015] 5 HKC 293, the Court of Appeal upheld a refusal to return based partly on the “child’s objection” defence and partly on a re- finding that habitual residence had shifted to Hong Kong. • In BMC v BGC [2020] HKCA 317, which involved a US Green Card dispute, the court found the child’s habitual residence had never left Hong Kong in the first place and, alternatively, that the father had acquiesced to non-return. Notably, the most significant escape valve from man - datory return has turned out not to be the Article 13 defences themselves but Hong Kong’s adoption of the modern UK/EU habitual-residence test, which requires only that residence acquire a degree of “sta - bility” rather than a settled, permanent parental inten - tion – making it considerably easier for children to be
their safety, and facilitate either a voluntary return or the prompt initiation of foreign court proceedings. Non-Convention Countries Conversely, if the child is taken to a non-Hague Con - vention country, the recovery process is generally more complex, requiring the parent to engage foreign lawyers to pursue return under local domestic laws. Mainland China However, a distinct framework exists if the child is taken to Mainland China, which is not a contracting state to the Hague Convention. Under the Mainland Judgments in Matrimonial and Family Cases (Recip - rocal Recognition and Enforcement) Ordinance (Cap. 639), which came into force on 15 February 2022, a custody order made in Hong Kong can be recipro - cally recognised and enforced in the Mainland. Con - sequently, if a child is taken to the Mainland in breach of a Hong Kong custody order, the left-behind parent may request the child’s return to Hong Kong. 3.3 Hague Convention on the Civil Aspects of International Child Abduction Cost Article 26 of the Convention prohibits Central Authori - ties from charging applicants for administrative servic - es, court proceedings, or legal counsel fees, though they are permitted to require payment for expenses incurred in implementing the return of the child. How - ever, the same article provides that a Contracting State can invoke an opt-out clause to exempt itself from covering court or legal counsel costs, except to the extent those expenses are covered by its own domestic legal aid system. Exercising this mechanism, Section 13 of the CACO provides that neither the Secretary for Justice nor any other authority in Hong Kong will bear the legal costs of Convention proceedings, except where the party qualifies for Hong Kong legal aid. Given the high quali - fication threshold for legal aid in Hong Kong, which requires applicants to pass both a merits test and a means test, applicants in most situations must bear their own legal costs.
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