Never tear us apart - the Hague Convention on parental child abduction

Your marriage has ended and you decide you want to leave Hong Kong.  This could go be to back to your home country, for a new job, to move with a new partner, or just to start afresh somewhere new. Whilst there may be no restriction on you from leaving Hong Kong, the same is not always the case for your child/children. This is even if there are no court proceedings or court orders in place. A parent needs to be very careful as to steps taken before taking a child out of Hong Kong.

There is an international treaty specifically designed to deal with the prompt return of children who have been removed or retained from their home country by a parent, without the agreement of the other parent.  It is called The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention").  Hong Kong is a signatory of the Hague Convention.

To invoke the Hague Convention, several conditions need to be met: –

1.    the child must be under 16 years old,

2.    the child was either wrongfully removed or wrongfully retained from the place where they usually reside, (known as their place of habitual residence),

3.    the taking of the child or the keeping of the child by one parent is in breach of the rights of custody of the left behind parent, who was exercising his or her rights of custody at the time of the breach,

4.    both the child's place of habitual residence and the jurisdiction to which the child is removed, or retained, are signatories of the Hague Convention.

If the above conditions are met, then you can expect the child to be returned promptly to his or her place of habitual residence unless at least one of the defences, as provided for within the Hague Convention, is successfully raised.

The unilateral taking or keeping of a child by a parent out of Hong Kong is a serious matter. In some jurisdictions, the wrongful removal or retention of a child can bring about criminal consequences, which will have a far reaching impact on the family.  It can also impact any subsequent relocation applications.

Therefore, you should always inform, and obtain the prior written consent of the other parent prior to any removal or retention of a child out of Hong Kong for whatever reason, be it long or short, temporarily or permanent, and regardless of the purpose.

This publication is general in nature and is not intended to constitute legal advice.  You should seek professional advice before taking any action in relation to the matters dealt with above.