Judicial procedures and enforcement
Powers of the court
In Hong Kong, by virtue of Section 6 of the CACO, the Court of First Instance of the High Court hears and determines an application under the Convention. The relevant procedural rules are in Order 121 of the Rules of the High Court (Cap. 4 sub. leg.) (Appendix A referred to in Order 121 can be accessed by clicking here).
Section 7 of the CACO confers powers on the court to give interim directions for securing the welfare of the child in question or preventing changes in the circumstances relevant to the determination of an application. The court may also require the personal attendance of a person specified by the court at the hearing of the application.
Section 15 of the CACO confers powers on the court to make a location order for requiring a person or a public officer to provide the court with applicable information about the child.
Section 17 of the CACO confers powers on the court to make a recovery order for requiring a person to return or deliver the child to a specified person. The court may also authorize or direct a police officer to find and recover a child (by force if necessary), to return or deliver the child to a specified person and to keep the child in a place of safety until the return or delivery of the child to the specified person. If the specified person cannot be contacted within reasonable time, the court may also authorize or direct the Director of Social Welfare to take follow-up actions that the Director considers appropriate.
The Convention requires the judicial or administrative authorities of Contracting States and territories to act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within 6 weeks from the date of commencement of the relevant proceedings, the applicant or the Central Authority of the requested Contracting State or territory may request a statement of the reasons for the delay. In Hong Kong, Order 121 of the Rules of the High Court (Cap. 4 sub. leg.) provides for a tight timetable for filing evidence, and every effort will be made by the court to fix a date for the hearing within the shortest possible time frame.
In Hong Kong, an appeal against a decision of the Court of First Instance of the High Court is to be made to the Court of Appeal and the relevant procedural rules are in Order 59 of the Rules of the High Court (Cap. 4 sub. leg.). A party who wishes to appeal has to lodge a notice of appeal setting out the grounds of appeal within 28 days after the date of the sealing of the order of the Court of First Instance. In case of utmost urgency, the normal appeal period may be abridged by making special arrangements with the Court of Appeal. Generally the ground of appeal is that the Court of First Instance was wrong on a question of law or of fact or of mixed law and fact.
When a Hong Kong court makes an order for the return of a child, measures dealing with the practical arrangement for the return can be included in the order (e.g. details of the departure flight, the person who has agreed to accompany the child to the airport, the person who has agreed to pick up the child at the place of habitual residence, etc.). The assistance of other government departments such as the Hong Kong Police Force, the Immigration Department and the Social Welfare Department would be enlisted where necessary.
If a court order is not complied with, the power of the court to punish for contempt of court may be exercised by an order of committal. This is useful if the person who fails to comply with the order is still within Hong Kong and the original order has been served on him/her. The relevant procedural rules are in Order 52 of the Rules of the High Court (Cap. 4 sub. leg.).
Last review date: 14 Feb 2018