I. Introduction
Since the 1997 handover, Hong Kong has remained a formal party to HAGUE Convention on the Civil Aspects of International Child Abduction (1980) (“HAGUE”), with continued bilateral enforcement arrangements—including with the United States—taking effect on 1 September 1997 1 . However, over the last two decades, the substantive efficacy of the Convention in Hong Kong–U.S. child abduction cases has been progressively diluted, and the mechanisms for enforcement have become increasingly discretionary and complex.
This erosion is driven by three primary developments:
- Judicial interpretation—particularly the expansive application of habitual residence and the strict construction of custody rights;
- Hong Kong’s decision not to adopt the HAGUE Convention of 19 October 1996, which has left a legal lacuna in the recognition and enforcement of cross-border parental responsibility measures.
- Institutional changes, the establishment of the International Organization for Mediation (“IOMed”) on May 30, 2025, as an alternative mediation forum;
- The tension between USA and China on HAGUE Process in HK, which might create operational delays possible; and heightened scrutiny cases and be exacerbated by China’s refusal to recognize dual nationality.
Together, these dynamics signal a paradigmatic shift: from the HAGUE Convention’s traditionally prompt, mandatory return mechanisms toward a more discretionary, welfare-focused, and at times non-binding legal environment.
II. Judicial Application: Flexible Application of Habitual Residence and Custody Rights
One central mechanism through which the Convention has been diluted is the Hong Kong judiciary’s reliance on the flexible and fact-sensitive test habitual residence standard, which has granted it substantial discretion in determining whether to enforce a return order. This principle, while central to the HAGUE framework, has evolved into a flexible, case-specific tool that permits courts to deny return where the child is found to have integrated meaningfully into life in Hong Kong—even if the removal was initially wrongful.
In JEK v. LCYP [2015] HKCFI 858, the court declined to return two children to New Jersey, notwithstanding the U.S. parent’s petition under the HAGUE Convention. The court found that the children had settled in Hong Kong, citing factors such as schooling, residential stability, and daily routines. This effectively neutralized the return remedy, even though both Hong Kong and the U.S. were HAGUE Convention jurisdictions. This shows how the habitual residence test, although a cornerstone of the Convention, allows Hong Kong courts wide latitude to deny return even in cases involving two HAGUE jurisdictions.
Similarly, in BMC v. BGC [2020] (HKCA), the Hong Kong Court of Appeal refused a father’s application for return of his daughter to the U.S. on the ground that her habitual residence had shifted to Hong Kong. This outcome emphasized the Hong Kong court’s tendency to prioritize present integration over historical jurisdiction.
Moreover, the strict construction of custody rights under Hong Kong and U.S. HAGUE jurisprudence has further narrowed access to Convention remedies. In Croll v. Croll, 229 F.3d 133 (2d Cir. 2000), the U.S. court—while affirming that the HAGUE Convention continued to apply to Hong Kong post-handover, due to the Sino-British Joint Declaration and the continued recognition of Hong Kong’s separate legal system —denied return based on the interpretation that a ne exeat clause requiring parental consent to remove a child from the jurisdiction—did not did not amount to a “right of custody” sufficient to trigger a return under the Convention. This interpretation undercuts the ability of parents to enforce return orders based solely on joint decision-making clauses, especially when contrasted with the Convention’s narrow definition of “rights of custody.”
In Re ALWB [2021], the Hong Kong court went further, invoking wardship jurisdiction to order the return of a child to Hong Kong, relying not on HAGUE mechanisms but on domestic protective principles. The shift to local jurisdictional doctrines such as parens patriae underscores the erosion of the Convention as a sole or even primary vehicle for cross-border dispute resolution.
More recently, the functional weakening of the Convention is most evident in cases involving Mainland China. In J v Q [2025] HKCFI 632, a mother unilaterally removed a child from Shanghai to Hong Kong in an effort to initiate HAGUE proceedings for return to Japan. However, the court ruled that the child’s habitual residence was in Mainland China—not in Japan nor in Hong Kong—and declined to apply the Convention. Instead, invoking local wardship jurisdiction, the court ordered the return of the child to Shanghai, focusing on the child’s best interests. This case reflects a broader judicial trend: where the Convention does not formally apply, or where its requirements are not strictly met, Hong Kong courts have increasingly turned to their parens patriae powers to resolve disputes under domestic family law principles.
These developments collectively illustrate a broader trend of softening HAGUE enforcement post-handover. Courts are interpreting habitual residence flexibly, often emphasizing integration and welfare over technical legal connections. Custody rights are strictly construed, as in Croll, limiting the Convention’s reach when legal control is ambiguous or shared. And in the absence of HAGUE reciprocity—especially with Mainland China—Hong Kong courts are bypassing the Convention entirely in favor of wardship jurisdiction, as in J v Q.
III. Hong Kong’s Non-Adoption of the 1996 HAGUE Convention
Hong Kong’s decision not to adopt 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 compounds these issues.
The 1996 Convention is intended to fill gaps left by the 1980 Convention by facilitating cooperation between jurisdictions over protective measures, recognition of custody orders, and cross-border enforcement of parental responsibility. Its absence in Hong Kong’s legal framework limits the courts’ ability to provide comprehensive child protection across borders, especially in cases where welfare considerations and longer-term care arrangements are at stake.
This gap not only affects return proceedings but also undermines long-term solutions, such as access enforcement and protective undertakings, particularly in relation to U.S. court orders.
1. Institutional Changes: Mediation and the Role of IOMed
The establishment of IOMed—a formal cross-border family mediation mechanism in Hong Kong—has introduced a structurally significant, yet legally problematic, alternative to judicial enforcement under the HAGUE Convention.
While presented as a facilitative, child-sensitive process, IOMed introduces systemic risks that may undermine the Convention’s objectives:
2. Mediation as a Soft Substitute for Binding Enforcement
IOMed’s non-binding nature may delay or even replace HAGUE return proceedings, undermining the strict timelines and legal certainty that the Convention is designed to guarantee. Mediation outcomes lack judicial enforcement unless subsequently approved by the court, which creates space for delay, manipulation, or withdrawal.
3. Increased Risk in Coercive or Imbalanced Family Dynamics
In cases involving coercive control, or unequal bargaining power, mediation may place the victimized parent—often the left-behind parent—at greater risk. Academic studies (e.g. MDPI) warn that such environments can produce re-traumatization or coerced “agreements” that fail to serve the best interests of the child.
4. Erosion of the Central Authority’s Role
Under the HAGUE framework, the Central Authority—the Department of Justice in Hong Kong—plays a critical role in coordinating international abduction responses. IOMed may function as a parallel track that sidesteps or marginalizes the Central Authority’s legal duties, weakening procedural safeguards and transparency.
5. Geopolitical Optics and Legal Credibility
IOMed’s positioning, especially as a Belt and Road–aligned institution, raises questions about its perceived neutrality. Foreign parents—particularly from the U.S.—may view mediation outcomes as less reliable or politically influenced, which may, in turn, diminish trust in Hong Kong’s adherence to international legal standards and foster forum shopping or non-compliance.
V. Practical Effects of the tension between USA and China on HAGUE Process in HK
Operational Delays Possible: Strained diplomatic relations and security sensitivities may slow down communication, cooperation, or enforcement—a situation especially relevant in high-profile or politically sensitive cases.
Heightened Scrutiny of Cases: Judges may give more careful consideration to claims such as “habitual residence” or potential harm, especially amidst heightened concerns about political instability or repression in Hong Kong.
Dual Nationality & Consular Challenges China’s refusal to recognize dual nationality has led to restrictions on consular access to dual-national detainees, adding further complexity to legal and diplomatic matters in Hong Kong.
VI. Recent Case Law: Judicial Pushback Amid Erosion
Notwithstanding these concerns, recent Hong Kong case law affirms that courts continue to enforce the HAGUE Convention in appropriate circumstances—though often through layered and conditional reasoning.
- Secretary for Justice v. C and S [2024] HKCFI 2821: The court ordered a child’s return to Germany under the HAGUE Convention, rejecting an Article 13 objection after finding it influenced. The decision reaffirmed that children’s preferences must be independently formed to merit weight under the Convention.
- Re X (Children) (UK, 2023): While not a Hong Kong case, it reflects international judicial thinking. The UK court ordered return under Article 13 with protective undertakings, illustrating how return orders are now commonly hedged with welfare measures, not unconditional.
These decisions suggest that Hong Kong courts remain committed to the letter of the Convention, but are increasingly guided by contextual and discretionary considerations—especially where IOMed or non-HAGUE dynamics complicate the return framework.
VII. Conclusion
The post-handover evolution of HAGUE Convention enforcement in Hong Kong—particularly in relation to the U.S.—reveals a gradual but significant loosening of the Convention’s original structure. The fluid interpretation of habitual residence, narrow readings of custody rights, the growing influence of non-binding mediation through IOMed, and the non-adoption of the 1996 HAGUE Convention have collectively weakened the reliability and predictability of return mechanisms in Hong Kong.
While recent case law affirms some judicial willingness to uphold Convention norms, the overall trend favors discretionary, welfare-driven resolutions over the Convention’s originally swift, rule-based model. As hybrid cases continue to grow, this discretionary posture risks undermining international confidence—particularly among HAGUE Convention partners like the United States—that Hong Kong remains a dependable jurisdiction for the return of abducted children.
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The stakes are at their highest. Working with a lawyer who understands both the HAGUE Convention and non-HAGUE jurisdictional implications is critical to protecting your child’s future. At Multi-Jurisdictional Divorce, we handle intricate cross-border custody cases, with particular expertise in HAGUE Convention applications and the enforcement of custody determinations issued.
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