Child Abduction / Hague Convention Proceedings

The Child Abduction and Custody Ordinance (Cap) 512 gives legal effect to the Convention on the Civil Aspects of International Child Abduction (25 October 1980). The intention of both is to facilitate the co-operation of relevant authorities to secure the prompt return of a child under the age of 16 to his or her country of habitual residence.

The key features of the CACO are:-

1. Article 3 provides that wrongful removal or retention shall be found if it breaches the custodial rights of a parent and those custodial rights were being exercised by the left behind parent at the time of the removal or retention.
2. Article 12 provides that return of the child ‘shall’ be ordered forthwith if the application is made less than one year after the wrongful removal or retention or, if after one year, if the child is not settled in its new environment.
3. Article 13 provides four ‘defences’ to an application for return, specifically:-
   1. custody rights were not being exercised; or
   2. the parent consented or acquiesced in retention; or
   3. there is a grave risk of physical or psychological harm or otherwise intolerable situation; or
   4. the child objects to return, being old and mature enough to have such view considered:
4. Articles 16, 17 and 19 provide general terms that clarify the purpose of abduction hearings are not to decide the merits of the parents’ rights of custody unless and until it has decided not to return the child. Furthermore, if a decision not to return is made, it does not amount to a decision as regards custody rights. This is to be determined by any subsequent children’s proceedings. These decisions are more rightly to be determined in the child’s country of habitual residence.
5. Applications are commenced in the country of habitual residence i.e. the home state by the left behind parent to the Central Authority. Liaison will then occur between the home state and the requested state before an application is formally commenced in the Court of First Instance.
6. Article 11 provides that all applications shall be determined within 6 weeks of the date of commencement.
7. The legal costs of the court proceedings are usually borne by the individual parents unless poor conduct can be found on the part of either parent.

It is important to secure prompt expert legal advice on the merits of an Abduction application if you suspect your child is about to be or has been unlawfully removed or retained from his or her country of habitual residence.