IFL Voices: Legislative and Judicial Improvements in the PRC on Wrongful Removal and Concealment of Children

In the People’s Republic of China (“PRC”), wrongful removal and concealing minor children without the other parent’s permission happens during and after separation or divorce. In recent years, various measures have been taken in legislation and judicial practice to prevent wrongful removal and concealment and to protect minor children’s physical and mental health.

Improvement in Legislation

In recent years, China has implemented a wide range of laws to prevent wrongful removal and concealment of minor children by parents, including the Civil Code of PRC, the Law on the Protection of Minors, the Law on Anti-domestic violence, and the Law on Family Education Promotion, the Civil Procedure Law of PRC, the Criminal Law of PRC, the Supreme People’s Court’s corresponding judicial interpretations of these laws, and the Supreme People’s Court rules as well as local court rules relating to minor children’s protection.

Improvement in Judicial Practice

In addition to taking legislative actions to prevent children’s wrongful removal and concealment, more and various effective measures have been taken in Chinese judicial practice to combat wrongful removal and concealment of children, including:

A. Family Education Order or Instruction on Caring Minor Children

Chinese courts use Family Education Orders to educate parents, and correct or even punish their wrongdoings to protect and safeguard the best interests of minor children.

B. Injunctions on Personal Rights Infringement

Chinese courts, in recent years, issue injunctions more frequently because laws and court rules on personal rights protection orders are applicable to the protection of parent’s rights to their minor children when parental rights are infringed, such as in cases of wrongful removal or concealment of minor children.

C. Restraining Orders and Stay-Away Orders

Wrongful removal of children by force, coercion, harassment, or assault is an act of domestic violence under Chinese law. Accordingly, Chinese courts can prohibit the wrongdoers from committing some acts and activities within a certain distance from the child. Some courts have also prohibited a party from concealing the child and ordered the child to be returned within a certain time limit.

D. Civil Liability and Remedies

The lawful rights of custody and visitation are violated by wrongful removal and concealment of minor children. Thus, corresponding civil liability must be imposed. Moreover, wrongful removal and concealment of minor children result in the failure to comply with a judgment. The court with proper jurisdiction may impose appropriate penalties on the party for non-compliance or inadequate compliance, including, but not limited to, detention and a fine.

E. Civil Penalty and Criminal Liability

A parent, who has wrongfully removed and/or concealed their minor child(ren), faces civil penalties or even criminal liability. A parent is criminal liable if he/she has committed serious maltreatment, abduction and trafficking, intentional injury in connection with wrongfully removing or concealing their minor child(ren).

To ensure the full compliance of custody or visitation orders, a party, who has the obligation to assist in the enforcement of a court order, may be held criminally liable for refusing to comply with a custody or visitation order.