Limitations of the Hague Convention and the fall-back for left-behind parents

5 September 2019 | Applicable law: Hong Kong

In the midst of a divorce or break-up, there is always the possibility of either parent taking the child out of the jurisdiction without warning, a phenomenon known as international parental child abduction. In light of the prevalence of interracial relationships and international marriages, this has become a growing problem. The Hague Convention on the Civil Aspects of International Child Abduction, more commonly called the Hague Convention among legal professionals, is often invoked to resolve the situation.

The Hague Convention was developed in the 1980s with a view to protecting children who have been wrongly removed from their country of habitual residence, and securing their prompt return. Under the Treaty, the left-behind parent can make a Hague application to the Central Authority of the place of the child's habitual residence, and seek a return order. In cases where the child has been removed from Hong Kong, the parent should approach the International Law Division of the Department of Justice for assistance.

The provisions under the Hague Convention are tailor-made to deal with international parental child abduction where time is of the essence. If a Hague application is made within one year from the date of the child's removal, it is imperative for the Court to order the child's return if the rules and requirements are complied with.

Even if the application is made more than one year from the date of removal, the Court is required to consider a list of factors in determining what is best for the child. The return of the child is the likely consequence, provided that the child has not yet settled in the new environment, and that nothing gravely adverse will occur upon his or her return (Articles 12 and 13 of the Hague Convention).

However, to successfully initiate a Hague application, there are several requirements that need to be satisfied.

First, the two places involved, namely where the child has been removed from and to, must be parties to the Hague Convention. As an international Treaty, the Hague Convention only has effect on places which have agreed to be bound by its provisions. As such, where the child is removed to places such as Mainland China and Taiwan, the well-structured mechanism under the Treaty is of not much help. The return of a child from Mainland China and Taiwan to Hong Kong is a very different and arduous process.

The second hurdle for the left-behind parent to overcome is to establish “wrongful removal” of the child, which means the removal is in breach of his or her rights of custody (Article 3 of the Hague Convention). While it is not legally accurate to paraphrase it this way, “rights of custody” can be seen as something similar to parental rights granted by law.

Using Hong Kong as an example, both the mother and father are automatically granted parental rights if the child was born during the marriage and both parents have legal responsibility for their child's upbringing. If a man is registered as the father of the child on the child's birth certificate, he is presumed to be the father of the child even if the child was born to unmarried parents. However, the father does not enjoy and is not automatically granted parental rights at law until he makes an application to the Court under section 3(1)(c)(ii) of the Guardianship of Minors Ordinance (Cap. 13). The reality is that an application for parental rights is rare when everything is going well and the relationship between the parents is smooth.

Without rights of custody, the mother can make unilateral decisions without the father's consent. Unfortunately, this means that if the child is suddenly abducted by the mother, without rights of custody, the unmarried father will mostly likely fail in his Hague application.

The Hague Convention has its limitations and should not be seen as the universal solution to international parental child abduction.

That said, if there is a situation where the Treaty cannot be invoked, Courts in common law jurisdictions, including Hong Kong and the UK, have developed the practice of borrowing concepts and principles under the Hague Convention in another type of legal proceedings known as wardship.

For example, it was held in the case of Re J (Child) (Returned Abroad: Convention Rights) [2005] 2 FLR 802, that if the left-behind parent was not eligible to make a Hague application, he or she may initiate legal proceedings to make the child a Ward of the Court. The Court will then assume the role as a parent to make major decisions concerning the child's welfare, and more importantly, order the child's return and prohibit any further removal. It is well-established in a Hong Kong case QMY v GSS [2017] 4 HKC 521 that the Court of First Instance has the power to make the child a Ward of the Court, even if the child is not physically present in Hong Kong.

Wardship proceedings operate in place of the Hague Convention to address the Treaty's limitations in child protection.

According to case law, such proceedings also offer room and flexibility for the Court to consider relevant factors outside the ambit of the treaty. Examples include the child's religious or cultural background, differences in the legal systems involved, etc.

While invoking wardship is not as straightforward as applying treaty provisions, it plugs the legal gap with advantages unique to legal proceedings of this nature. Safe to say, wardship proceedings serve as a well-qualified fall-back for left-behind parents in child abduction cases.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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