| Application
for assistance in the return of an abducted child General
principle Central
Authorities are required to co-operate and assist in securing the return of a
child to the place of his/her habitual residence, if he/she has been wrongfully
removed to or retained in another Contracting State. An international child abduction
usually occurs when a person takes a child to another State without the consent
of the person who has rights of custody of the child. Please click here
to view the schedule of Contracting States and territories having a Convention
relationship with Hong Kong.
| The removal or retention
of a child is wrongful if - | - it
is in breach of rights of custody under the law of the place of the child's habitual
residence immediately before the removal or retention, by reason of a judicial
or administrative decision or an agreement between the relevant parties; and
- at
the time of the removal or retention, those rights were actually exercised or
would have been exercised but for the removal or retention.
|
When
will the Central Authority of Hong Kong assist
| The Central Authority
of Hong Kong will assist in securing the return of a child wrongfully removed
or retained to the place of his/her habitual residence if - |
- the
child is under 16;
- either
-
- the removal
or retention occurs on or after the date of coming into force of the Convention
as between Hong Kong and that Contracting State or territory (please click here
to check the dates).
You
can apply for the return of the child if you have rights of custody of the child
at the time of the wrongful removal or retention. "Rights of custody" include
rights relating to the care of the person of the child and, in particular, the
right to determine the child's place of residence.
| However, you should
note that the judicial or administrative authorities of the Contracting State
or territory where the child is might not order the return of the child under
the following circumstances - | - judicial
or administrative proceedings were commenced after one year from the removal or
retention and the child is settled in his/her new environment;
- the
applicant for the return was not actually exercising the relevant rights of custody
at the time of the removal or retention;
- the
applicant for the return consented to or subsequently acquiesces in the removal
or retention;
- there
is a grave risk that the return would expose the child to physical or psychological
harm or otherwise place the child in an intolerable situation;
- the
child objects to being returned (if the child is old and mature enough to express
his/her own views).
After
receiving notice of a wrongful removal or retention of a child in the sense of
Article 3 of the Convention, the judicial or administrative authority concerned
shall not decide on the merits of rights of custody, where there are civil proceedings
in progress relating to the child, until it has been determined that the child
in question is not to be returned or unless an application under the Convention
is not lodged within a reasonable time. A decision concerning the return of a
child is also not to be taken to be a determination on the merits of any custody
issue. During the negotiation of the Convention, it was considered that custody
disputes would be best left to the courts in the place of habitual residence of
the child concerned.
| For an outgoing
case, you may - | - send
an application for assistance to the Central Authority of Hong Kong; or
- send
an application for assistance directly to the Central Authority of the Contracting
State or territory where the child is; or
- directly
commence foreign judicial or administrative proceedings (it is advisable to instruct
lawyers to represent you in such proceedings).
| For an incoming
case, you may - | - send
an application for assistance to the Central Authority of the place of the child's
habitual residence; or
- send
an application for assistance directly to the Central Authority of Hong Kong;
or
- directly
commence judicial proceedings in the Hong Kong courts (it is advisable to instruct
Hong Kong lawyers to represent you in such proceedings).
See
also the Locating a missing child section.
|
| | | How
will the Central Authority of Hong Kong assist If
you send an application for assistance in relation to an outgoing
case to the Central Authority of Hong Kong and your request fulfils the requirements
under the CACO
and the Convention, we can help you to liaise with the Central Authority of the
relevant Contracting State or territory for assistance in securing the return
of the child. Where appropriate, we can also assist in making an application to
the Hong Kong courts for a declaration that the removal of a child from Hong Kong
or the retention of a child outside Hong Kong is wrongful. In
an incoming case, it will facilitate our work in obtaining
relevant information and evidence if you apply to us for assistance through the
Central Authority of the place of the child's habitual residence. We will liaise
with that Central Authority, and can assist in the relevant judicial proceedings.
However, you can also send your application for assistance directly to the Central
Authority of Hong Kong. We will assist if your request fulfils the requirements
under the CACO
and the Convention. Amongst
Central Authorities, appropriate steps will be taken to find the child, to bring
about an amicable resolution or to institute judicial or administrative proceedings
to secure the return of the child.
Submitting
an application "Request
for Return of Child" form To
submit an application for assistance to the Central Authority of Hong Kong, you
should complete and submit a "Request for Return of Child" form (FORM DJ-C30(E))
(click here to download the form in pdf or rtf
format, and click here for contact details
of the Central Authority of Hong Kong). We also encourage other Central Authorities
to use this form in incoming cases, as that will facilitate
our work.
| To enable us to process
your application for the return of a child, please submit a copy of each of the
following supporting documents (if applicable and available) - |
- a recent
photograph of the child;
- a
recent photograph of the person thought to be with the child;
- a
copy of the marriage certificate of the child's parents;
- a
copy of the divorce decree nisi/absolute of the child's parents;
- an
authenticated copy of the custody or access order (or agreement) relating to the
child;
- a copy
of the child's birth certificate;
- a
copy of the child's identity card(s)/travel document(s);
- a
copy of the identity card(s)/travel document(s) of the person thought to be with
the child.
| You will assist our
work by supplying the following information - |
- the legal grounds justifying
the request;
- the
place of the child's habitual residence, living arrangements and schooling;
- the
detailed circumstances of the removal or retention;
- the
child's relationship with his/her parents and other immediate and extended family
(if relevant);
- the
intention of the person thought to be with the child (if known);
- any
action that you have taken and reasons for any delay (if applicable);
- any
negotiation between the parties (if applicable);
- the
proposed return arrangement;
- for
incoming cases, an affidavit or affirmation from a lawyer
that gives evidence that you have "rights of custody" under the law of the place
of the child's habitual residence (copies of the relevant court orders and foreign
law should be provided).
You
should also indicate whether it is likely that the person thought to be with the
child may co-operate in returning the child voluntarily or may flee with the child
once alerted of your request for the return of the child. If you anticipate that
the person will raise a defence, you will assist our work by supplying evidence
in advance to deal with the defence. Please
note that the requirement to supply information is not intended to create procedural
obstacles but to facilitate the conduct of proceedings in a proper and efficient
manner.
|
| Language A
"Request for Return of Child" form should be completed in English (Form DJ-C30(E))
or Chinese (Form DJ-C30(C)). These two languages are the official languages of
Hong Kong. Any communication or document sent to the Central Authority of Hong
Kong that is not in English or Chinese should be accompanied by an English or
Chinese translation or only where that is not feasible, a French translation.
However, if communications or documents in French are sent, it may take longer
for us to process your application due to the need to have them translated.
  Last
review date: 28
Jan 2011
|
