Posts
Jeremy D. Morley
In Hong Kong, an
unmarried father has no rights of custody over his son or daughter unless and
until he brings a court case and succeeds in obtaining a court order that
provides him with express rights. This appears to apply even if the mother has
added the name of the father to the child’s birth certificate.
This means that if
the child is removed from a habitual residence in Hong Kong, and even though
Hong Kong is a party to the Hague Abduction Convention, the Convention cannot
be used to secure the child’s return to Hong Kong because the father has no
“rights of custody” within the meaning of the Convention.
Hong Kong’ s law on the guardianship and custody of children
dates back to the late 1970s. Section
3 (c) of Hong Kong’s Guardianship of Minors Ordinance provides that “where the
minor is illegitimate … a father shall only have such rights and authority, if
any, as may have been ordered by a court on an application brought by the
father…” The Act provides that the child’s mother automatically has sole
custody.
If, after the
unilateral removal of a child from Hong Kong, the left-behind father obtains a
court order providing him with rights of custody over the child and requiring
the child’s return to Hong Kong, that may not cure the problem concerning the
Hague Convention.
However, the Hong
Kong post - “abduction” order could normally be registered and enforced in
courts in the United States pursuant to the Uniform Child Custody Jurisdiction
and Enforcement Act (or predecessor statute in Massachusetts). But similar laws
do not exist outside the United States. Also, Hong Kong has not adopted the
Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co-operation in Respect of Parental Responsibility
and Measures for the Protection of Children.
