To ensure the effective operation of the convention

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to ensure the effective operation of the convention and to give their central authorities adequate powers to play a dynamic role, as well as the qualified personnel and resources, including modern means of communication, needed in order expeditiously to handle requests for return of children or for access.” 40 3.22 McClean suggested that the very existence of the Hague Convention increases the number of voluntary returns. 41 For example, the United States reported that in the first three years of the implementation of the Convention there, there was a significant rate of voluntary returns equal to almost 60% of the number of court ordered returns for incoming applications, and nearly 33% of the court ordered returns for outgoing applications. 3.23 It was noted that a balance had to be struck between the principle of giving respect to the comity of nations, by enforcing custody orders or rights, and the local court’s views on the welfare of the child. Article 38 See B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 3 All ER 258. 39 McClean (1993), above, at para 14. The third Special Commission in 1997 (see below ) would note that the United States had developed an International Child Abduction Attorney Network (ICAAN) which offers pro bono representation for applications under the Hague Convention there. 40 Ibid, at para 15. 41 Idem . 29
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19 provides that a decision relating to the return of the child is not to be taken as a determination on the merits of any custody issue. 3.24 It was also noted that there has been a failure in the past by the common law courts to develop a consistent approach to the handling of international child abduction cases. One of the reasons for this is that such cases are “fact-sensitive”. It is therefore difficult to elicit general principles from these cases. 42 3.25 Another limitation is that the Hague Convention only applies to wrongful removal or retention occurring after its entry into force in a contracting state. Thus in Hong Kong's case, wrongful removals or retentions occurring prior to 1 September 1997 do not come within the protection of the Convention. 3.26 McClean observed that there are some qualifications to the primacy of the welfare principle: (1) If two parents who are separated or divorced live in different continents, then the reality is that the “custody decision must often mean complete and final loss of the child to one of the parties, for access may be impracticable and wholly unsatisfactory” , 43 (2) the welfare principle is not some international standard but instead a set of values of a particular legal system. Appealing to the welfare principle may encourage a court to deal with the merits of the case instead of accepting the foreign court’s decision, 44 and (3) there is a dilemma for the court. If the court is going to fully examine all the factors contained in the welfare principle, 45 it will have to gather evidence from the country of habitual residence, whose social work agencies may not have the necessary resources to investigate. Thus there will be delay which may prejudice the welfare of the child.
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  • Summer '17
  • allen dasu
  • Child custody, Child abduction, Hong Kong SAR

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