Child Custody and Access in Hong Kong

The question many people ask: after a divorce, who does the child live with?

The Ordinance does not answer "who". It answers "by what standard". Section 3(1)(a)(i) of the Guardianship of Minors Ordinance (Cap. 13) is direct about it: in proceedings concerning a minor's custody or upbringing, the court "shall regard the best interests of the minor as the first and paramount consideration". Not a parent's rights, not who earns more, and not a formula assigning children of a given age to one parent — section 3 contains no age line, no proportion, and no list ranking one factor above another. (Other provisions of Cap. 13 do set an age: s. 12A(1) fixes 18 for financial orders. The best-interests standard in s. 3 does not.)

This article starts from that sentence and follows the order a reader actually needs: what the provision says, who may apply, when, how long a financial order lasts, what powers the court holds, and which parts of the decision the statute leaves entirely to the judge. Throughout, statutory quotations omit the inline amendment notes carried in the text itself (for example, "(Amended 1 of 2012 s. 4)"), and no emphasis has been added inside any quotation.

What this actually is: the provision itself

A custody dispute is not a contest one parent wins. It is a court applying one statutory standard through a set of statutory powers — and the standard is section 3 of Cap. 13.

Take the Ordinance itself first. The long title of Cap. 13 reads: "To consolidate and amend the law relating to the guardianship of minors." Section 1, "Short title": "This Ordinance may be cited as the Guardianship of Minors Ordinance."

Part 2 is headed "General Principles" and section 3 is headed "General principles". Section 3(1):

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In plain terms: one standard (the child's best interests), two things the court must give due consideration to (the child's own views, and the material before it including any report of the Director of Social Welfare), and one express exclusion — a father's claim does not rank higher because he is the father, and neither does a mother's.

Three points deserve to be pulled out separately:

• The child's views are in the provision itself. Many people treat "will the court listen to my child?" as a matter of judicial discretion. Section 3(1)(a)(i)(A) makes it one of the matters the court "shall give due consideration to", subject only to a condition: "if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so". The words are "age and understanding". No age is stated.
• The social welfare report is in the provision too. Paragraph (B) refers to "any material information including any report of the Director of Social Welfare available to the court at the hearing" — so a social investigation report is not an optional extra step; it is expressly among the material the section requires the court to give due consideration to.
• The section does not define "best interests". Section 3 contains no list of factors at all. The section below on how the court decides keeps apart what the statute writes down and what it does not.

Which court? Section 2 defines court as meaning "the Court of First Instance or the District Court". In practice the great majority of children's matters are dealt with in the Family Court, a division of the District Court — but note that this is a description of practice, not the text of Cap. 13, which says only "the Court of First Instance or the District Court".

Hong Kong domicile is not required. Section 26 is headed "Jurisdiction over persons not domiciled in Hong Kong" and consists of a single sentence: "The jurisdiction conferred on any court by this Ordinance shall be exercisable notwithstanding that any party to the proceedings is not domiciled in Hong Kong." That matters for cross-border families.

The hearing need not be in open court — and s.23 does more than that. Section 23 is headed "Procedure in District Court", and its opening words set the frame: "Except as otherwise expressly provided in this Ordinance, Part 4 of the District Court Ordinance (Cap. 336) shall apply to every proceeding before, and every order by, the District Court under this Ordinance, and—". Part 4 of Cap. 336 (Civil Jurisdiction and Procedure) is therefore the procedural floor for these District Court proceedings, except where Cap. 13 expressly provides otherwise. Three paragraphs follow. Section 23(a): "the application may be heard and determined otherwise than in open court". Section 23(b): "where the District Court considers that the matter is one which could more conveniently be dealt with by the Court of First Instance, the District Court may refuse to make an order and in that case, without prejudice to the general right of appeal conferred by Part 4 of the District Court Ordinance (Cap. 336), no appeal shall lie from the decision of the District Court". Section 23(c): "an order for the payment of money shall be enforceable in like manner as an order for the payment of a civil debt."

Either party can compel removal to the Court of First Instance. Section 24 is headed "Removal to Court of First Instance" and runs to one sentence: "Where any application has been made under this Ordinance to the District Court, the Court of First Instance shall, at the instance of any party to the application, order the application to be removed to the Court of First Instance and there proceeded with on such terms as to costs as it thinks proper." The verb is "shall", not "may".

There is no time bar on applying. Cap. 13 sets no limitation period for a custody or access application. What it does limit is how long a financial order can last in general — see "When to apply, and how long a financial order lasts" below. Section 12A does not govern custody or access orders, but do not read that as Cap. 13 fixing no period for them at all: s.13(3) allows an interim order on an adjournment which may include, "where by reason of special circumstances the court thinks it proper, any provision regarding the custody of the minor or the right of access to the minor of either of his or her parents", and the subsection's closing words set both a cap and the rule that stops interim orders being chained: "but an interim order under this subsection shall not be made to have effect after the end of the 3 months beginning with the date of the order or of any previous interim order made under this subsection with respect to the application, and shall cease to have effect on the making of a final order or on the dismissal of the application." The three months therefore do not restart with each fresh interim order, and the order ends the moment a final order is made or the application is dismissed. That anti-chaining limb belongs to s.13(3) alone: the District Court has a separate interim power under s.13(4) — "The District Court may also make such an interim order where under section 23(b) it refuses to make an order on an application under section 10 on the ground that the matter is one that would more conveniently be dealt with by the Court of First Instance; but an interim order under this subsection shall not be made so as to have effect after the end of the 3 months beginning with the date of the order." — capped at three months in the same way, but carrying no equivalent of s.13(3)'s "or of any previous interim order made under this subsection with respect to the application" words. Section 16(1) adds: "Notwithstanding section 63 of the District Court Ordinance (Cap. 336), there shall be no appeal from an interim order under section 13(3) or (4) if the appeal relates only to a provision requiring payments to be made towards the maintenance of a minor." The provision says only "Notwithstanding section 63"; it does not call s.63 a general right of appeal, and s.63(1) of Cap. 336 reads: "Subject to subsection (3), an appeal can, with leave of a judge or the Court of Appeal, be made to the Court of Appeal from every judgment, order or decision of a judge in any civil cause or matter." An appeal from a judge therefore requires leave; what lies as of right is the s.63(1A) appeal from a master to a judge in chambers. Section 16(2) adds: "Section 10(3) and (4) and section 20 shall apply to any such interim order as they apply to an order under section 10(1) or (2)."

Section 10(3) supplies a second three-month rule, and it carries a precondition that is easy to miss. The whole subsection speaks only to the case where "An order may be made under subsection (1) or (2) notwithstanding that the parents of the minor are then residing together" — that is, where the parents are still living together. On that footing paragraph (a) makes the order unenforceable while they reside together, and paragraph (b) provides that "any such order shall cease to have effect if for a period of 3 months after it is made they continue to reside together". The proviso to the same subsection then removes a large part of that: "Provided that, unless the court in making the order directs otherwise, paragraphs (a) and (b) shall not apply to any provision of the order giving the custody of the minor to a person other than one of the parents or made with respect to a minor of whom custody is so given." So where custody has been given to someone who is not a parent, paragraphs (a) and (b) do not apply unless the court directs otherwise.

In a divorce, the same standard applies

Divorce is governed by Cap. 179 and Cap. 192, but the children's side still runs on section 3 of Cap. 13. That does not have to be inferred; Cap. 179 says so. Its long title reads: "To make further and better provision in respect of the law governing matrimonial causes and for matters incidental thereto or connected therewith." Part VII is headed "Protection of Children", and section 48C is headed "Application of section 3 of the Guardianship of Minors Ordinance":

This site's reading (Cap. 179 s.48C read with Cap. 13 s.3): the two provisions use different words. Section 48C describes section 3 in its parenthesis as providing that "the welfare of the minor" shall be first and paramount, whereas the in-force text of section 3 itself says "the best interests of the minor" — the words in s.3(1)(a)(i) were changed by the 2012 amending Ordinance. Section 48C was added in 1983, and its parenthesis is a description, not the content of section 3. The provisions themselves do not say whether the two expressions differ in law. What section 48C plainly does is clear enough: an order for custody, care or supervision made in divorce, nullity or judicial separation proceedings is governed by the same section 3 standard.

Who can apply, and what orders are available

Standing is written narrowly and specifically. Whether you can apply directly, or must clear a step first, depends on your legal relationship to the child.

Check yourself against the list:

• Are you a parent of the minor (married to the other parent)? You can apply directly. Part 4 is headed "Orders for Custody and Maintenance"; section 10 is headed "Orders for custody and maintenance on application of either parent"; section 10(1) reads:

> The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding—

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> (a) the custody of the minor; and

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> (b) the right of access to the minor of either of his or her parents,

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> as the court thinks fit having regard to the best interests of the minor and to the conduct and wishes of the parents.

Two things to notice. First, "who may apply without next friend" — a parent does not need a third party to bring the application in the child's name. Second, what the court must have regard to is not only the child's best interests but also "the conduct and wishes of the parents".

• Are you the Director of Social Welfare? The same subsection gives the Director the same standing. That is why some cases begin with the Department rather than a parent.

• Are you the father of a child born outside marriage? There is a step to clear first — see "The legal position of unmarried parents" below, ss.3(1)(c)(ii) and 3(1)(d).

• Are you a guardian acting to the exclusion of a surviving parent? Section 11 is headed "Orders for custody and maintenance where person is guardian to exclusion of surviving parent"; where joint guardians disagree, section 12 is headed "Orders for custody and maintenance where joint guardians disagree".

• Are you a guardian, or someone caring for the child under a court order, but not a parent? In matrimonial causes, rule 92(3) of the Matrimonial Causes Rules (Cap. 179A) opens a door: "the guardian of any child of the family and any other person who, by virtue of an order of a court, has the custody or control of such a child or his care or supervision in pursuance of section 48 of the Ordinance may, without obtaining leave to intervene in the cause, apply by summons for such an order as is mentioned in paragraph (1)" — no leave to intervene is needed. Rule 92(2) also allows an agreed custody or education order, and an access application where the other party consents and only the extent is in issue, to be made to the registrar rather than a judge.

• Are you already in divorce proceedings? Section 19 of Cap. 192 is headed "Orders for custody and education of children affected by matrimonial suits". Section 19(1): "The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18—", paragraph (a) covering "in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree", and paragraph (b) "where such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal;"

Disagreeing parents who are not fighting over custody. Section 4 of Cap. 13 is headed "Unenforceability of agreements to give up parental rights". Section 4(2): "Where a minor’s father and mother disagree on any question affecting the minor’s welfare, either of them may apply to the court for its direction, and subject to subsection (3) the court may make such order regarding the matters in difference as it may think proper." But section 4(3) draws the boundary: "Subsection (2) shall not authorize the court to make any order regarding the custody of a minor or the right of access to the minor of his or her father or mother." So section 4(2) is the route for a discrete disagreement — which school, for instance — while custody and access themselves run through section 10. Section 4(4) is the variation power for a s.4(2) direction: "An order under subsection (2) may be varied, discharged, suspended or revived after being so suspended by a subsequent order made on the application of either parent or, after the death of either parent, on the application of any guardian or (before or after the death of either parent) on the application of any other person having the custody of the minor." Section 4(5) preserves other legislation: "Nothing in this section shall affect the operation of any enactment requiring the consent of both parents in a matter affecting a minor."

Section 4(1) in the same section is worth knowing too: an agreement by which a parent gives up the rights and authority referred to in section 3 "shall be unenforceable", and even a separation agreement between husband and wife that does provide for this will not be enforced "if the court is of opinion that it will not be for the benefit of the child to give effect to it".

The orders the legislation actually provides (the middle column reproduces each provision's own heading)

The opening words of s.13(1) have to be followed. Section 13(1) does not stand alone: it reads "then subject to sections 14 and 15". Section 15(1) is one of them: "Before making an order under section 13(1)(b) committing the care of a minor to the Director of Social Welfare, the court shall inform the Director of the court’s proposal to make the order and shall hear any representations from the Director, including any representations as to the making also of an order under section 13(2) for payment to the Director." The Director therefore has a statutory hearing before the care order is made, not notice after it. Section 15(3) adds that while the s.13(1)(b) order remains in force "the minor shall continue in the care of the Director of Social Welfare notwithstanding any claim by a parent or other person". Section 14 deals with supervision orders: where the parents are residing together when the order is made, s.14(1)(a) allows a direction that "the order may direct that it is to cease to have effect if for a period of 3 months after it is made they continue to reside together", and s.14(1)(b) that the order "may direct that it is not to operate while they are residing together"; s.14(2) is the power to vary, discharge, suspend or revive a supervision order.

Cap. 179 carries the matching provisions for its own orders. Section 48A(2): "The court shall before making an order under this section hear any representations from the Director of Social Welfare, including any representations as to the making of a financial provision order in favour of the child." Section 48A(3): while the order is in force "the child shall continue in the care of the Director of Social Welfare notwithstanding any claim by a parent of the child or another person". And on variation during supervision, s.48(2) provides that the jurisdiction to vary "shall, subject to any rules, be exercisable at the instance of that court itself".

Three address-notification duties, each carrying a penalty. Under Cap. 13 s.19(1) a person for the time being under an obligation to pay under a Cap. 13 money order "shall within 14 days of a change of address give notice of his or her new address" to the person specified in the order "by sending the notice by registered post" to that person's last known address; s.19(2): "A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable to a fine at level 2". Under Cap. 179 s.48B, each parent or guardian of a child under s.48 supervision or in s.48A care "shall within 1 month give notice to the Director of any change of address of that parent or guardian and any person who without reasonable excuse fails to comply with this section commits an offence and is liable to a fine at level 2". The third is Cap. 13 s.15(4): "Each parent or guardian of a child for the time being in the care of the Director of Social Welfare by virtue of an order under section 13(1)(b) shall give notice to the Director of any change of address of that parent or guardian and any person who without reasonable excuse fails to comply with this subsection commits an offence and is liable to a fine at level 1." That one is a fine at level 1, not level 2, and it binds each parent or guardian of a child already in the Director's care.

Where the social investigation report sits in the statute. Many people know the report exists without knowing where it comes from. Section 17(1) of Cap. 13 provides that if the court dealing with a section 10 application requests the Director of Social Welfare to arrange for an officer of the Social Welfare Department to make a report "with respect to any specified matter (being a matter appearing to the court to be relevant to the application), the Director of Social Welfare shall comply with such request". Section 17(2) then requires the statement to be made or read aloud in court, after which the court "shall ask whether any party to the proceedings who is present or represented by counsel or solicitor at the hearing objects to anything contained therein"; where objection is made, "the court shall require the officer by whom the statement was or purported to be made to give evidence on or with respect to the matters referred to therein", and any party may give or call evidence on it. Section 17(3) adds that the court may act on that material outside the ordinary rules of evidence: "The court may take account of any statement made or read aloud under subsection (2) and of any evidence given under paragraph (a) of that subsection, so far as that statement or evidence relates to the matters specified by the court under subsection (1), notwithstanding any enactment or rule of law relating to the admissibility of evidence."

When to apply, and how long a financial order lasts

There is no deadline for applying, but orders have an end date — and on the abduction side there is a hard one-year line.

(1) The divorce decree and the children's arrangements are locked together. Section 18 of Cap. 192 is headed "Restrictions on decrees for dissolution, annulment or separation affecting children". Section 18(1) opens:

Paragraph (b)(i) is satisfied where "arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances". The alternatives are that there are no children of the family to whom the section applies (paragraph (a)); that "it is impracticable for the party or parties appearing before the court to make any such arrangements" (paragraph (b)(ii)); or the paragraph (c) route, where circumstances make it desirable that the decree be made without delay — and for that route s.18(2) requires the court first to obtain "a satisfactory undertaking from either or both of the parties to bring the question of the arrangements for the children named in the order before the court within a specified time".

The consequence is stated bluntly — and the second half of the sentence matters as much as the first. Section 18(3) in full: "If the court makes absolute a decree nisi of divorce or of nullity of marriage, or makes a decree of judicial separation, without having made an order under subsection (1) the decree shall be void but, if such an order was made, no person shall be entitled to challenge the validity of the decree on the ground that the conditions prescribed by subsections (1) and (2) were not fulfilled." So a decree made absolute without the s.18(1) order is void; but where the order was made, the decree is not open to challenge on the ground that the s.18(1) and (2) conditions were unmet. The first limb is the risk; the second is a bar. Section 18(4) covers the converse case: "If the court refuses to make an order under subsection (1) in any proceedings for divorce, nullity of marriage or judicial separation, it shall, on application by either party to the proceedings, make an order declaring that it is not satisfied as mentioned in that subsection."

Which children does s.18 apply to? The section answers that itself, in s.18(5). Paragraph (1)(a) above turns on the court being satisfied "that for the purposes of this section there are no children of the family to whom this section applies", and the qualifying words are defined by s.18(5): "This section applies to the following children of the family, that is to say— (a) any minor child of the family who at the date of the order under subsection (1) is— (i) under the age of 16, or (ii) receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also in gainful employment; and (b) any other child of the family to whom the court by an order under that subsection directs that this section shall apply; and the court may give such a direction if it is of opinion that there are special circumstances which make it desirable in the interests of the child that this section should apply to it." A 17-year-old child of the family who is no longer in education or training therefore falls outside section 18 altogether, unless the court gives a direction under paragraph (b).

Section 18(6) also defines the word for this section: welfare "in relation to a child, includes the custody and education of the child and financial provision for him".

In one line: to get out of the marriage, the children's arrangements have to clear section 18 first.

(2) How long a financial order lasts. Cap. 13 s.12A is headed "Provisions as to powers of court to make orders in favour of children and duration of such orders". Note that it governs money orders only: s.12A(2) lists the orders to which s.12A(1) applies, and they are just two — an order "for payment of a lump sum by instalments" and one "for periodical payments or secured periodical payments". Section 12A does not apply to a custody or access order under s.10(1); for those, see s.13(3) (interim orders capped at 3 months and ending on a final order or dismissal) and s.10(3)(b) (which applies only where the parents are residing together, and is subject to the proviso to s.10(3)). Section 12A(1): the term for which payments are to be made or secured "may begin with the date of the making of an application for the order in question or any later date but shall not extend beyond the date when the child will attain the age of 18." Section 12A(3), which applies only "in relation to a child who has not attained the age of 18", provides two exits: where the child "is, or will be, or if such an order or provision were made would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation", or where "there are special circumstances which justify the making of the order or provisions". Section 12A(4) supplies a second terminus in the same section: "Any order made by virtue of section 10(2)(b), 11(1)(b)(ii), 12(b)(ii) or 13(2)(b) shall, regardless of anything in the order, cease to have effect on the death of the person liable to make payments under the order, except in relation to any arrears due under the order on the date of such death." Sections 48(4) and 48A(4) of Cap. 179 likewise end supervision and care orders at 18.

(3) Orders can be changed — but which power applies depends on the section the order was made under. Cap. 13 s.10(4) is the variation power for a section 10 order. An order for custody and education made in divorce, nullity or judicial separation proceedings is made under Cap. 192 s.19, which carries its own set: s.19(5) — "While the court has power to make an order in any proceedings by virtue of paragraph (a) of subsection (1), it may exercise that power from time to time; and where the court makes an order by virtue of paragraph (b) of that subsection with respect to a child it may from time to time until that child attains the age of 18 make a further order with respect to his custody and education."; s.19(6) — "The court shall have power to discharge or vary an order made under this section or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended"; and s.19(7) — "An order made by virtue of this section shall cease to have effect as respects any child when he attains the age of 18". On the Cap. 179 side, s.48(3) (supervision) and s.48A(5) (care) each provide that "The court shall have power from time to time by an order under this section to vary or discharge any provision made in pursuance of this section". Cap. 192 s.20(2) applies s.19(2) and (6) to a s.20 custody order as well.

Section 10(4): an order under s.10(1) or (2) — other than an order for a lump sum paid in one amount, a lump sum by instalments where all instalments have been paid, or a transfer of property — "may be varied, discharged, suspended or revived after being so suspended, by a subsequent order made on the application of either parent", or of a guardian after a parent's death, or of any other person having custody of the minor by virtue of a s.10(1) order.

(4) The one-year line on the abduction side. See "Removing a child from Hong Kong" below — Article 12 of the Convention set out in Schedule 1 to Cap. 512 turns on a period of one year.

Custody, Care and Control, Access — Three Distinct Concepts

These three concepts cover distinct aspects of Hong Kong child law and are often confused. One textual point first: Cap. 13 uses the words "custody" and "access" (s.10(1)(a) and (b)); the phrase "care and control" also appears in the Ordinance — in the section 2 definition of custody order, paragraph (d), which covers an order of the Court of First Instance in its wardship jurisdiction "so far as it gives the care and control of a minor to any person".

Custody concerns the right and responsibility to make major decisions about the child — education, religion, medical treatment, place of residence, travel, and so on. The court may make:

• A sole custody order, giving one party alone the decision-making role; or
• A joint custody order, giving both parties shared responsibility for major decisions (though this does not necessarily mean the child's day-to-day life is split equally).

In recent years Hong Kong's Family Court has shown an increased willingness to make joint custody orders, encouraging both parents to continue to be involved in the child's upbringing after divorce. This is not a fixed rule — where the parties are in serious, persistent conflict and unable to cooperate, sole custody may still be in the child's better interest. (That paragraph describes practice, not the text of Cap. 13; the Ordinance contains no provision favouring joint or sole custody.)

Care and control concerns day-to-day living arrangements — with whom the child primarily lives and who handles daily care. Care and control can be sole (with the other parent having "access") or shared (where the child's time is more evenly distributed between the parties).

Access is the right of the parent who does not have care and control to spend time with the child. Access orders take various forms:

• Reasonable access — no fixed timing; the parties work arrangements out between themselves
• Defined access — specific dates, times, and places are set out in the order
• Supervised access — contact takes place with a third party present (a social worker, designated relative, or professional agency), used where there are safety concerns

Hong Kong courts generally do not make a "no order" in contested matters — even where parents are able to manage on their own, the court will make a corresponding order as a matter of practice. (Again a description of practice: Cap. 13 contains no "no order" principle.)

How the court actually decides — what the statute writes down, and what it does not

The statute supplies one standard and a small number of matters that must be considered. It supplies no list of factors, no weightings and no formula. The two layers have to be kept apart.

On the statutory side (Cap. 13):

• The standard: s.3(1)(a)(i) — the court "shall regard the best interests of the minor as the first and paramount consideration".
• Two matters that must be given due consideration: the child's views (s.3(1)(a)(i)(A), subject to "the age and understanding of the minor and to the circumstances of the case" making it "practicable"); and "any material information including any report of the Director of Social Welfare available to the court at the hearing" (paragraph (B)).
• One express prohibition: s.3(1)(a)(ii) — the court shall not take into consideration whether the father's claim is superior to the mother's, or the mother's to the father's.
• An additional matter when making a custody order: s.10(1) — "the conduct and wishes of the parents".
• The starting point on parental rights: s.3(1)(b) — "a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other".
• The threshold language for the exceptional routes: s.13(1)(a) requires that a custody order has already been made on the application, and that "exceptional circumstances" make independent supervision desirable; s.13(1)(b) requires "exceptional circumstances making it impracticable or undesirable for the minor to be entrusted to either of the parents or to any other individual" — before the minor can be placed under the supervision of, or committed to the care of, the Director of Social Welfare.
• Children are to be asked about guardianship too: s.6(5) — a parent or guardian appointing a guardian "is required to take into account the views of the minor as far as practicable having regard to the minor’s age and understanding." — though s.6(8) provides that "The validity of an appointment of a guardian is not affected by a failure to comply with subsection (5)."

On the non-statutory side: the list of factors below is what is commonly raised and weighed in practice. It is not the text of Cap. 13. The Ordinance lists no factors and assigns no weight to any of them:

• The child's needs and wishes — the weight given to the child's own wishes increases with age and maturity. (The wishes themselves are in the statute, at s.3(1)(a)(i)(A); the sliding weight is a description of practice.)
• Each parent's capacity to care — time, health, emotional stability, financial resources
• The child's current environment and stability — who has been the primary caregiver, schooling, family network, stability of residence
• The parents' ability to cooperate — better cooperation supports more shared arrangements
• The child's emotional relationships — including the principle that siblings should generally not be separated
• Any factor harmful to the child — domestic violence, abuse, neglect, substance abuse, parental misconduct
• The importance of continued involvement of both parents — unless there is good reason, Hong Kong courts generally favour maintaining a stable relationship with both parents

No formula delivers the answer — every case is weighed on its own facts. In complex or disputed matters, the court may direct the Social Welfare Department to prepare a social investigation report, in which a social worker interviews the parties and the child and provides an assessment to the court; in the statute this sits at s.17(1) of Cap. 13 (the Director "shall comply with such request") and at s.3(1)(a)(i)(B) (the report is "material information" the court must give due consideration to).

Custody outcomes turn heavily on each family's facts, and one case cannot be read across to another. For judgments on the money side, see real cases on asset division and maintenance .

Removing a Child from Hong Kong — there is a provision written for exactly this

Taking a child out of Hong Kong (for a short trip or permanent relocation) is one of the most heavily litigated areas of family law.

The legislation has a provision written for it. Section 48D of Cap. 179, added in 2014, is headed "Order for prohibiting removal of child out of Hong Kong". Section 48D(1) sets the scope: "This section applies to a child of the family as defined by section 2(1) of the Matrimonial Proceedings and Property Ordinance (Cap. 192) who is under the age of 18." Section 48D(2):

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Section 48D(3): "Unless otherwise directed by the court, the application may be made ex parte." In an emergency, in other words, the application can be made without notice.

There is also a provision that is not tied to Cap. 179 proceedings. Section 21 of Cap. 512 is headed "Court of First Instance or District Court may make order prohibiting removal of child out of Hong Kong without consent". Section 21(1): "This section applies to a child who is under the age of 18 if— (a) a court order concerning the custody of or access to the child is in force; or (b) proceedings concerning the custody of or access to the child are pending in a court." Section 21(2) imposes a direct prohibition: "A person must not remove the child out of Hong Kong without the consent of the following persons (whether or not a parent of the child)— (a) if the court order is in force—the person, or each of the persons, who has the custody of or access to the child under the order or who is exercising the rights of that custody or access; or (b) if proceedings concerning the custody of or access to the child are pending in a court—each party to the proceedings." Section 21(3) provides the route to a prohibition order, and s.21(6) allows the application to be made ex parte. Section 21(4) adds: "If an order has been made under subsection (3), the court that made the order may do one or more of the following— (a) vary or discharge the order; (b) suspend the operation of a provision of the order, and revive the operation of the provision so suspended." Section 21(5) preserves the court's other powers ("Subsection (4) does not affect the powers and discretions of the court that are exercisable apart from that subsection."), and s.21(7): "This section does not affect the effect of any other order."

A prohibition order takes one further step before it does anything at the border. Section 22 is headed "Notification of prohibition orders". Section 22(2)(a): "an applicant for a prohibition order may notify the Director of Immigration that the order has been made or, if the application is pending, the date for the hearing of the application has been fixed by the court". Having given that notification, the applicant must so far as practicable inform the other custodian or each party to the proceedings (s.22(3)); "A failure to comply with subsection (3) does not affect the validity of a prohibition order or the operation of section 23" (s.22(4)). Section 23 is the border power itself: "An authorized officer may detain a child if the following conditions are met" — the conditions being that the officer is satisfied a s.22(2) notification has been given and that no s.22(5)(b)–(e) notification has been given, and that "the officer reasonably suspects that the child is about to be, or is being, removed out of Hong Kong". Section 23(3): "If an immigration officer detains a child under subsection (1), the officer must as soon as practicable transfer the child into the charge of a police officer." Section 23(4)(a) then provides that "the police officer must as soon as practicable take the child to, and keep the child in, a place of safety until— (i) the arrival of, and the return of the child to, the person specified in subsection (5); or (ii) in any other case—the Director of Social Welfare is to take the follow-up actions that the Director considers appropriate"; and where that person cannot be contacted within a reasonable time, the Director of Social Welfare takes over (s.23(4)(b)). In short: s.21 is the order, s.22(2) is the switch that arms it, and s.23 is the enforcement.

This site's reading (s.48D read with Cap. 512 s.21): the two have different entry conditions. Section 48D requires the applicant to be a party to proceedings "under this Ordinance" — that is, Cap. 179 — so it is unavailable to unmarried parents and to anyone whose only proceedings are under Cap. 13. Cap. 512 s.21 requires only that a custody or access order be in force or such proceedings be pending, and s.21(8) defines "child" so as to reach orders and applications made under Cap. 13 ss. 10(1), 11(1)(a), 12(a) and 13(1)(b) and (3).

Where custody orders exist. A parent with custody who wishes to take the child out of Hong Kong is bound by the terms of the order. As a general principle, permanent removal from Hong Kong requires the written consent of the other party or the court's leave. Some orders also constrain short trips (requiring notice to the other party, or prohibiting travel to specified countries). (This site's note: that restriction has at least four sources — the terms of the order itself, a s.48D prohibition, Cap. 512 s.21 above, and rule 94(1) of the Matrimonial Causes Rules (Cap. 179A): "Subject to rule 97(2), an application for leave to remove a child permanently out of Hong Kong shall be made to a judge unless the application is unopposed, in which case it may be made to the registrar" (rule 97, including any subsection (2), was itself repealed in full by L.N. 325 of 1982, so this cross-reference has no surviving content). Cap. 13 contains no general prohibition on removing a child from Hong Kong, but Cap. 512 s.21 covers that ground where a custody or access order is in force or such proceedings are pending — it does not apply where there is neither.)

Where no custody orders exist. Where parents are in dispute but no court order has yet been made, taking the child out of Hong Kong without the other parent's consent may constitute wrongful removal under the Hague Convention and Hong Kong law.

The Hague Convention mechanism — how it works in the text

The Ordinance implementing the Convention in Hong Kong is Cap. 512. Its long title: "An Ordinance to give effect in Hong Kong to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980; to combat child abduction; and to provide for related matters." Section 1(1): "This Ordinance may be cited as the Child Abduction and Custody Ordinance."

• The Convention has an age ceiling: 16. Article 4 of the Convention in Schedule 1: "The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of sixteen years." This is a hard limit on scope — once the child turns 16 the Convention no longer applies, and none of the machinery below (the one-year line, the exceptions, the Central Authority route) is available. Most of the other age thresholds in this article are 18 (Cap. 179 s.48D(1), Cap. 192 s.19(1), Cap. 13 s.12A(1), Cap. 512 s.21(1)) — but 16 is not unique to the Convention: Cap. 192 s.18(5)(a)(i) draws the same line, applying section 18 to "any minor child of the family who at the date of the order under subsection (1) is— (i) under the age of 16". Article 4 is the only age line in the Convention itself.
• The Convention has the force of law here. Section 3 is headed "Convention to have force of law in Hong Kong": "Subject to the provisions of this Part, the provisions of the Convention as set out in Schedule 1 shall have the force of law in Hong Kong."
• Who is the Central Authority? Section 5 is headed "Central Authorities". Section 5(1): "The functions under the Convention of a Central Authority shall be discharged by the Secretary for Justice." Section 5(2) allows a person outside Hong Kong to address an application "to the Secretary for Justice as the Central Authority in Hong Kong".
• Which court hears it? Section 6 is headed "Judicial authorities": "The Court of First Instance shall have the jurisdiction to hear and determine an application under the Convention."
• The one-year line. Article 12, first paragraph, of the Convention in Schedule 1: "Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith." Second paragraph: the authority "even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Article 12 has a third paragraph: "Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child."
• The exceptions. Article 13 opens by overriding Article 12 — "Notwithstanding the provisions of the preceding Article" — and on that footing the authority of the requested State "is not bound to order the return of the child" if the person opposing return establishes that the person having care of the child "was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention", or that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation". A separate paragraph of the same Article adds that the authority "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." The Article closes with a mandatory direction, and it is the reader's textual route for putting material before the authority: "In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence."
• Return is not a custody decision — and the country the child was taken to may not decide custody first. Two articles do different jobs. Article 19 goes to the character of a return decision: "A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue." One consequence follows immediately: Cap. 512 s.14 provides that "Where an order is made by the Court of First Instance for the return of a child under this Ordinance, any custody order relating to the child shall cease to have effect." — an existing custody order does not survive a return order.

What actually bars the receiving country's courts from deciding custody is Article 16: "After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."

• How Hong Kong makes Article 16 operate: Cap. 512 ss.11 and 20. Section 11 first fixes what Article 16 means here: "The reference in Article 16 of the Convention to deciding on the merits of rights of custody shall be construed as a reference to making, varying, discharging, suspending or reviving after being so suspended a custody order." Section 20(2) then places a duty on a party: "If a party to proceedings under the Convention in relation to a child knows that a custody application in relation to that child is pending in a specified authority, that party must file in the Registry of the High Court a notice containing a statement that sets out" — the notice stating the nature of the custody application and the authority concerned. Section 20(3) requires the Registrar of the High Court to notify that authority, and on receipt s.20(4)(a) provides that "all further proceedings in the custody application are to be stayed until the final determination or final disposal of the proceedings under the Convention". Article 16 does not operate by itself; someone has to file.
• Beyond the one-year line, there is Article 18. Article 18 of the Convention in Schedule 1: "The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time." Articles 12 and 18 sit in the same Chapter III (Return of Children), so the "settled in its new environment" answer in Article 12's second paragraph is not the outer limit of the authority's power.
• The Convention sets a six-week timing rule of its own. Article 11: "The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children." And: "If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay."
• The Central Authority is one route, not the only one. Article 29: "This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention." Section 6 of Cap. 512 already gives the Court of First Instance jurisdiction over Convention applications.
• Costs: Articles 22 and 26, and Cap. 512 s.13. Article 22: "No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention." Article 26 has four paragraphs. The first is "Each Central Authority shall bear its own costs in applying this Convention." The second provides: "Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child." — so the Central Authority route carries no charge for the application itself, but the expenses of implementing the return may be charged for; the two are separate. The third lets a Contracting State reserve, under Article 42, against the second paragraph's costs of legal counsel and court proceedings — and those are the costs s.13 of Cap. 512 goes on to allocate. Its fourth and final paragraph: "Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child." On the Hong Kong side, s.13 of Cap. 512 provides that "The costs mentioned in the third paragraph of Article 26 of the Convention shall not be borne by the Secretary for Justice or any other authority in Hong Kong", except so far as they fall to be so borne by virtue of a grant of legal aid under the Legal Aid Ordinance (Cap. 91).
• Access is within the Convention too. Chapter IV is headed "RIGHTS OF ACCESS"; Article 21, first paragraph: "An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child."

The Convention's core principle is return to the habitual residence, so that the courts of that country decide custody — not the country the child was taken to; Article 16 is the textual basis for that (Article 19 deals with the separate point that a return decision is not itself a custody ruling). Limited exceptions exist (for example, grave risk to the child, or the child being well-settled in the new country), but the threshold is high.

Part 2 of Cap. 512 carries several further orders a reader can actually use. How is a "wrongful removal" established? Section 10: "The Court of First Instance may, on an application made for the purposes of Article 15 of the Convention by a person appearing to the Court of First Instance to have an interest in the matter, make a declaration that the removal of a child from Hong Kong, or the retention of the child outside Hong Kong, was wrongful within the meaning of Article 3 of the Convention." For finding a child there is the s.15 location order: s.15(2)(a) allows an order "requiring a person to provide the Court with applicable information that the person has or may reasonably obtain about the child", s.15(5) provides that "Unless otherwise directed by the Court of First Instance, the application may be made ex parte.", and s.15(7) provides that "A person to whom a location order applies must comply with it, regardless of whether or not— (a) there is any restriction imposed by a law or agreement concerning the disclosure of the applicable information; or (b) the applicable information is subject to legal professional privilege." (ss.15(8) and (9) deal with self-incrimination). The s.17 recovery order can go further, "authorizing or directing a police officer to do one or more of the following for finding the child (and to do so with the assistance the officer requires and by force if necessary)— (i) stop and search a vehicle, vessel or aircraft; (ii) enter and search a place", and "authorizing or directing a police officer to recover the child (and to do so with the assistance the officer requires and by force if necessary)". Section 7(1) adds that before a Part 2 application is determined the Court may "give an interim direction as the Court thinks fit for securing the welfare of the child concerned, or for preventing changes in the circumstances relevant to determining the application" and may "require the personal attendance of a person specified by the Court, including either or both of the parents of the child, at the hearing of the application". The s.17 recovery order carries its own notification-and-detention chain, parallel to the s.21 → s.22 → s.23 chain above: s.18(2)(a) — "an applicant for a recovery order may notify the Director of Immigration that the order has been made"; and s.19 is the border power, s.19(4)(a) requiring that "the police officer must as soon as practicable take the child to, and keep the child in, a place of safety until the return or delivery of the child to a person specified in the recovery order". Part 2 also holds a prohibition power that needs no Hong Kong custody order at all — s.16, written for a child in transit: s.16(3) — "The Court of First Instance may, on application by the Secretary for Justice, make an order prohibiting the removal of the child from Hong Kong to a jurisdiction other than— (a) the child’s home state; (b) another jurisdiction as may be specified in the order mentioned in subsection (2)(a) or (b)(ii)." — with s.16(2) fixing when it applies (the child's home state has ordered the child brought to Hong Kong temporarily so that access can be exercised, or the child is in transit back to the home state after another Contracting State has determined the removal wrongful). Section 8 separately empowers the Secretary for Justice, in discharging the Central Authority's functions under Articles 7 and 21, to require written reports from the Director of Social Welfare, the Commissioner of Police, the Director of Immigration and others.

Note that the list of Contracting States is set by order of the Chief Executive published in the Gazette. Section 4(1) of Cap. 512 provides that the Contracting States "shall be those for the time being specified by an order made by the Chief Executive and published in the Gazette under this section", and s.4(2)(b) adds that unless the order provides otherwise, the Convention applies between Hong Kong and that State "only in relation to wrongful removals or retentions occurring on or after that date". That order is currently the Child Abduction and Custody (Parties to Convention) Order (Cap. 512A): s.1(1) — "The countries specified in column 1 of the Schedule are the Contracting States to the Convention."; s.1(3) — "The date of the coming into force of the Convention as between Hong Kong and a Contracting State or a territory specified in the Schedule is the corresponding date specified in column 3 of the Schedule".

The Legal Position of Unmarried Parents

Cap. 13 draws an express distinction between parental status inside and outside marriage, and it is drawn in specific terms.

• Mother. Section 3(1)(b): "except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other". Where the minor is illegitimate, s.3(1)(c)(i) provides that the mother "shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate". On the statutory text, in other words, the mother's position does not change.
• Father, if married to the mother. Governed by the same s.3(1)(b) — equal rights and authority.
• Unmarried father. Section 3(1)(c)(ii): the 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 under paragraph (d)". Section 3(1)(d) is that route:

> the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.

Section 3(2) then adds: "Subsection (1)(a) shall have effect as regards any application under subsection (1)(d)." So the court hearing such an application is itself bound by the best-interests standard.

Section 21, headed "Application to illegitimate children", adds a further layer: for the purposes of sections 5, 6, 7, 8D and 11, the natural father of an illegitimate child "shall not be treated as the father of the minor" unless "he is entitled to the custody of the minor by virtue of an order in force under section 10(1)" or "he enjoys any rights or authority with respect to the minor by virtue of an order in force under section 3(1)(d)". The section then closes: "but any appointment of a guardian made by the natural father of an illegitimate child under section 6(1) shall be of no effect unless the appointor is entitled to the custody of the minor as under paragraph (a), or to enjoy any rights or authority with respect to the minor as under paragraph (b), immediately before his death."

After the death of one parent: Cap. 13 s.5, and the words it opens with. Section 5 is headed "Rights of surviving parent as to guardianship" and runs to a single sentence, but it opens with a condition: "Subject to section 19(4) of the Matrimonial Proceedings and Property Ordinance (Cap. 192) and any court order to the contrary", and only then "on the death of a parent of a minor, the surviving parent (if any) is the guardian of the minor either alone or jointly with any guardian appointed under this Part". The provision it points to has to be read with s.19(3): under s.19(3), when the court makes or makes absolute a decree of divorce, or makes a decree of judicial separation, "it may include in the decree a declaration that either party to the marriage in question is unfit to have the custody of the children of the family"; and s.19(4) then provides that where the decree contains such a declaration and the party is a parent of a child of the family, "that party shall not, on the death of the other parent, be entitled as of right to the custody or the guardianship of that child". A single declaration in a divorce decree can therefore rewrite the surviving parent's position.

Accordingly, when a cohabiting relationship ends or unmarried partners separate, the father typically needs to apply to the Family Court to establish his legal position. Consulting a qualified solicitor is recommended.

The "Joint Parental Responsibility" Model

The law in force uses custody and access, and that can be checked in the text. Part 4 of Cap. 13 is headed "Orders for Custody and Maintenance"; s.10(1) empowers orders regarding "the custody of the minor" and "the right of access to the minor of either of his or her parents"; Cap. 192 s.19 speaks of "custody and education"; Cap. 179 ss.48 to 48D speak of supervision, care, and "the custody, care or control" of the child. The vocabulary of parental responsibility does not appear in the in-force text of Caps. 13, 179, 179A, 192, 336, 512 or 512A.

As to the reform itself: the arrangement usually proposed in place of the existing three-concept framework (custody, care and control, access) is known as the joint parental responsibility model. What follows describes the model itself; for the current legislative position, check Government and Legislative Council announcements. The conceptual shift is this: the responsibilities of parents do not change on divorce or separation — both parents continue to share responsibility for the child, and the specific question is only where the child lives day-to-day.

Whether and when that reform is enacted is a matter for official announcements. What a reader has to work with today is the law in force: sections 3 and 10 of Cap. 13, quoted above.

Related guides: see also the divorce process and dividing matrimonial property , or browse our Hong Kong family law overview .

This site's note: on the statutory side the first and paramount consideration is the best interests of the child, which is the content of s.3(1)(a)(i). What is commonly weighed alongside it — the stability of existing arrangements, which parent has been the primary carer, the child's own wishes (depending on age and maturity), and each parent's caring capacity and circumstances, rather than any parental "right" to the child.

The question many people ask: can I predict what the court will order?

No — and the reason is in the provision. Section 3 sets one standard and nothing else: no weightings, no proportions, no age lines. On the money side there is at least a judge-made starting point (equal division). On the children's side there is not even that; the statute asks only that the court regard the child's best interests as first and paramount.

What the text can answer:

• the standard the court applies (s.3(1)(a)(i));
• the two matters it must give due consideration to (paragraphs (A) and (B) of the same provision);
• who may apply (s.10(1)) and what orders are available (ss.10(1), 10(2), 13(1));
• when a financial order ends (Cap. 13 s.12A(1)) and whether an order can be changed (s.10(4));
• how the divorce decree is locked to the children's arrangements (Cap. 192, s.18);
• the time limit and the exceptions on the cross-border side (Cap. 512, Schedule 1, Articles 12 and 13).

What the text cannot answer: on your family's facts, which of those will outweigh which.

Working the numbers

There is no money arithmetic in this one. Custody and access do not involve a sum, and Cap. 13 fixes no amount, proportion or fraction for custody — the only money in the section is the child maintenance order under s.10(2), and that arithmetic belongs to the child maintenance guide . So rather than force a calculation, this section does two things: sets out, in order, the steps the court works through; and works two of the computations the text actually supports — both of which are dates, not dollars.

(1) Step by step: the order the court works in

Taking an application by a parent under section 10 of Cap. 13, the provisions call for the following sequence:

• Jurisdiction first. Section 2 — "court" means the Court of First Instance or the District Court. Section 26 — the jurisdiction is exercisable even though a party is not domiciled in Hong Kong. Section 23 — District Court proceedings are additionally governed by Part 4 of the District Court Ordinance (Cap. 336); section 24 — any party may have a District Court application removed to the Court of First Instance.
• Standing. Section 10(1) — either parent (who may apply without next friend), or the Director of Social Welfare. The father of a child born outside marriage must first take the s.3(1)(d) step.
• Apply the standard. Section 3(1)(a)(i) — the best interests of the minor as the first and paramount consideration.
• Give due consideration to the two statutory matters. (A) the child's views, if practicable having regard to age, understanding and the circumstances; (B) any material information, including any report of the Director of Social Welfare before the court at the hearing.
• Add what s.10(1) requires on top. "the conduct and wishes of the parents".
• Exclude the one thing that must not count. Section 3(1)(a)(ii) — no superiority of the father's claim over the mother's, or the mother's over the father's.
• Get a report if one is needed. Section 17(1) — the court may request one and "the Director of Social Welfare shall comply with such request"; s.17(2) gives every party the chance to object in court and to call evidence.
• Choose the form of order. Custody (s.10(1)(a)); access (s.10(1)(b)); in exceptional circumstances a supervision order (s.13(1)(a)) or an order committing care to the Director (s.13(1)(b)) — s.13(1) opens "then subject to sections 14 and 15", on which see below; and where the hearing is adjourned more than seven days, an interim order under s.13(3) lasting no more than three months and ending on a final order or on dismissal.
• In a divorce, clear s.18 of Cap. 192. Without the declaration order under s.18(1) the decree cannot be made absolute, and s.18(3) provides that a decree made without it "shall be void" — while the rest of the same subsection provides that where the order was made, no person may challenge the decree on the ground that the s.18(1) and (2) conditions were not fulfilled. Which children s.18 reaches is fixed by s.18(5) (under 16 at the date of the s.18(1) order, or in education or training, or the subject of a direction by the court).

(2) Two worked computations from the text — both are dates

• When the financial order ends. Cap. 13 s.12A(1) — the term "shall not extend beyond the date when the child will attain the age of 18." Worked through: a child born on 10 March 2015 attains 18 on 10 March 2033; on an order made 1 August 2026, that is 2,413 days away (about 6.6 years). Unless one of the two s.12A(3) exits applies (education or training; or special circumstances), that date is the end point.
• The Convention's one-year line. Article 12 turns on whether "a period of less than one year has elapsed". Worked through: a wrongful removal on 1 March 2026 puts the one-year point at 1 March 2027 (365 days). Proceedings commenced on 15 January 2027 — 320 days after the removal, under a year — fall in the first paragraph, where the authority "shall order the return of the child forthwith". Proceedings commenced on 1 April 2027 — 396 days after — fall in the second, where return is still to be ordered "unless it is demonstrated that the child is now settled in its new environment". The same facts, filed two and a half months later, hand the other side an additional answer. The one-year line is not the outer limit of the authority's power, though: Article 18 provides that "The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time." And Article 11 sets a separate clock — "The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children." And "If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay." Those six weeks are not a deadline for the return itself; they are the point at which reasons for delay can be demanded.

(Both items are illustrations of how s.12A(1) and Article 12 operate. The dates are chosen to illustrate the provisions; they are not the facts of any decided case, and nothing here is an assessment of any reader's own case.)