China – Hong Kong
How can your prepare child relocation from or within China-Hong Kong? What if your child has been relocated without your consent?
Hong Kong is a member of the Hague Convention on Child Abduction.
We will explain what this means for your options.
Lawyers and mediators in China – Hong Kong
We provide a list of lawyers and mediators in China – Hong Kong who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental authority: China – Hong Kong
Authority
When a child is born from a marriage the mother shall have the same parental rights and authority as the father, and the rights and authority of the morhter and the father shall be equal and be exercisable by either without the other (Section 3(b) of the Guardianschip of Minors Ordiance, Chapter 13).
When the parents are not married, the mother shall have the same parental rights and authority as she would have if the parents were married, but the father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father (Section 3(c) of the Guardianship of Minors Ordiance, Chapter 13).
After divorce
The court will, after considering the circumstances of each individual divorce case, make a sole custody order, a joint custody order or, in rare cases, a split order.
Sole custody order
When a sole custody order is made, the custodial parent would have both the right of daily care and control of the child as well as all the power to make important decisions about the child. The non-custodial parent would generally only retain the access right in respect of the child, and would be effectively excluded from the making of important decisions affecting the upbringing of the child.
Joint custody order
When a joint custody order is granted, both parents retain the right to decide on important matters affecting the upbringing of the child, although the physical care and control is usually granted to only one of them. They should thus discuss and cooperate on the
concerned matters.
Split order
Split orders are rarely made. They vest the daily care and control of the child in one parent and give custody, in the sense of wider decision making power, to the other.
Traveling with children: China – Hong Kong
If a parents wishes to travel with it’s child from Hong Kong to another country, the parent will need the permission of the other parent with custodial rights. The permission of the other parent must be documented in a ….
Child relocation: China – Hong Kong
Court order
A parent wishing to move permanently out of Hong Kong with the child must obtain consent from the other parent.
If the other parent does not grant their consent, he or she is required to obtain permission from the Hong Kong Court for the relocation.
A parent who leaves Hong Kong without this consent may be viewed as wrongfully removing the child and the other parent will have recourse under the Hague Convention to seek the return of the child. Hong Kong is a signatory to the Hague Convention and the provisions of the convention were given effect by the enactment of the Child Abduction and Custody Ordinance Cap 512 in 1997.
The Court’s paramount consideration when dealing with relocation applications is the welfare of the child. Section 3 of the Guardianship of Minors Ordinance (Cap. 13) states that the best interest of the minor is the first and paramount consideration.
The applicable principles governing relocation applications are set out in the English case of Payne v Payne [2001] EWCA Civ 166. This case was adopted by the Hong Kong Court of Appeal in SMM v TWM [2010] HKFLR 308.
In deciding relocation applications, the Court will assess a number of factors including:
1. Whether the application is genuine in the sense that it is not motivated by some selfish desire to exclude the other parent from the child’s life.
2. Whether the relocation plan is realistic i.e. founded on practical proposals both well research and investigated.
If the application passes the first two tests then there will be an appraisal of:
3. The opposing parent’s opposition.
a. Whether it is motivated by a genuine concern for the future of the child’s welfare or is it driven by an ulterior motive.
b. What would be the extent of the detriment to the parent and his/her future relationship with the child if the application was granted.
c. To what extent would any detriment to the relationship be offset by extension of the child’s relationships with the relocating parent’s family and homeland.
4. What would be the impact on the relocating parent of a refusal of a realistic proposal.
5. The Court will then bring an overriding review of the child’s welfare as the paramount consideration.
The Court will also be aided by the ‘Welfare Checklist’ as set out in the Hong Kong “Children’s Proceedings (Parental Responsibility) Bill, which is yet to be passed as law in Hong Kong. The factors in the ‘Welfare Checklist’ should be taken into account when determining issues in relation to children and where their best interests are to be considered.
In ZJ v XWN [2018] 3 HKLRD 644, the position in Hong Kong was brought before the Court of Appeal. In this case, the Court of Appeal said that the guidance in Payne or SMM v TWM or the welfare checklist are “simply tools to assist a family judge in making the multi-factorial assessment to reach a result which is in the best interest of the child after taking account of the potential impacts on the parents”. The Court cannot prescribe how a balancing exercise should be undertaken. So long as a judge does not regard any tools as the ultimate test if place of a holistic assessment of all the relevant factors in the circumstances of the case, it is a matter for the judge in a particular case to decide if any one of the tools should be used in a particular case.
Child abduction: China – Hong Kong
Hague Convention
China – Hong Kong is a party to the Hague Convention on Child Abduction. The obligations that the convention creates are elaborated in the the Child Abduction and Custody Ordinance, chapter 512.
Government
For more information, you can contact the Central Authority.
The Central Authority is a first point of contact if you want your children to return. They will forward your request for the children to return to the other parent to seek voluntary return. They will also enlist the assistance of the social welfare officers to provide counselling and other social services to the abducting parent and the child where appropriate. If both parents are within the jurisdiction and both consent to mediation, they will furnish them with information on family mediation services provided by NGOs.
Court procedure
Once the child is located, and whith the consent of the applicant, the Central Authoriy will initiate Hague proceedings and arrange for an early hearing date. These Hague proceedings will be held in parallel with the attempt to secure a voluntary return. If the abducting parent is willing to cooperate, the arrangements for the voluntary return will be embodied in a consent order made by the court. On the other hand, if the abducting parent wishes to contest the Hague Proceedings, the case will be dicided by the court.
The High Court has jurisdiction to deal with child abduction cases. The appeal must be filed within 28 days. The party that wishes to appeal must obtain permissin to appesl, by showing that the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. Generally, the High Court will give a decision within 6 weeks.
Child participation
The views of the child can be heard by a direct interview with the judge, or by a report prepared for court by an independant expert of by the child’s own legal representative. The court can appoint the Official Solicitor or an other person to be the guardian ad litem fo the child.
Mediation
Mediation is possible and provided by NGOs.
Execution
Appeal does not automatically postpone the execution of the return order. A return order can be suspended pending an appeal at the request of either party and after determination by the judge. The appeal can take upto 6 months.
If the abducting parent does not cooperate with a return order, the applicant needs to start a procedure to enforce a return order.
Several coersive measures are available to enforce a return order, such as: intervention by government agency (police), removal of the child from the abducting party, and an order placing the child under supervision.
Prevention
When the Hong Kong court makes a custody order, it also directs that the child or children cannot be removed from Hong Kong without (1) leave of the court; or (2) written consent of the other parent.
If a parent removes a child from the jurisdiction of Hong Kong without the consent of the other parents or permission from the court this breaches the other parent’s custodial rights this is considered child abduction.
A parent who has concerns that the other parent may remove the child from Hong Kong without agreement can serve the order on the Director of Immigration to restrain the child from being removed from Hong Kong. The effect will be that the child will be flagged and if/when the child goes through immigration at Hong Kong airport or another border control, he or she will be stopped by the Immigration Officer.
A parent who thinks the other parents intends to remove a child before a custody order is made can make an urgent application to the Hong Kong Family Court for an injunction to prevent the child from leaving Hong Kong. The injunction order is then served on the Director of Immigration to prevent the child exiting through immigration at the airport or other border control.
If the order has been served on the Director of Immigration, the child can still travel with the consent of both parents. In such circumstances, the parties will need to sign a Consent Summons with respect to the travel and file it at Court for the Judge to approve. This will become a Consent Order. The travelling party will need to have a sealed copy of the Consent Order to show the immigration officer when exiting through immigration in Hong Kong. The process to obtain a Consent Order from the Court could take a couple of weeks so parties are encouraged to agree the travel arrangements as soon as possible so that the relevant documentation can be obtained to enable the travel.
Legal aid
A parent who does not live in Hong Kong, but who does need a lawyer in Hong Kong, may be eligible for subsidized legal assistance, depending on his/her income and assets. The Central Authority can refer you to the Legal Aid Ordinance.
For more details: check the country profile of China – Hong Kong on the website of HCCH.
Criminal law : China – Hong Kong
Criminal law
The intentional removal of a minor from legal custody is not a criminal offence in Hong Kong.
Relevant websites : China – Hong Kong
Permission form to travel with children
…..
Implementing act
Child Abduction and Custody Ordinance, Chapter 512
Central Authority
Government website : Central Authority
Subsidized legal aid
Government website: Legal Aid Department
Books & Articles: China – Hong Kong
Stranded spouses
September 2021
By Caroline McNally,
Lawyer at Gall, Hong Kong
Caroline McNally has written a Case Summary on an international relocation case H v W [2021] HKCA 733 for Hong Kong Lawyer magazine. In this case the quarantine requirements were relevant for the appeal court’s decision that the mother would not get permission to relocate the chld.
This article was publishes on the website of Hong Kong Lawyer.
Blogs about China – Hong Kong
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Relevant case law in China – Hong Kong
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