2. The Game Plan
1. The Children’s Bill
2. Expert Evidence
3. Enforcement
2
3. Topic 1
The Children’s Bill
aka the “Children Proceedings (Parental Responsibility) Bill”
4. Part 1: History of the Bill
Part 2: Structure of the Bill
Part 3: Headline Reforms
Part 4: New Language & Orders
Part 5: Representation & Views of
Children
Part 6: Contact Centers
5. History of the Bill
Emphasis on Marriage over Parenthood
Natural Guardians
Filius Nullius
Guardianship & Custody
5
SEXIST and OUTDATED LAWS
6. History of the Bill
Presumed legislative intent:
Ubamaka v Secretary for Security (2012)
15 HKCFAR 743, 763 at §43, per Ribeiro
PJ
Development of common law:
Re P [1999] 3 All ER 734 (CA)
6
Impetus for Reform – International
Obligations
7. History of the Bill
ICCPR and HK Bill of Rights (Cap 383)
Protection for the family, equal rights for
parents, child protection in divorce and
marital breakdown
(Articles 19 and 20, HKBOR)
7
8. History of the Bill
Bill of Rights, Article 19:
Rights in respect of marriage and family
(1) The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State.
(2) …
(3) …
(4) Spouses shall have equal rights and responsibilities as to
marriage, during marriage and at its dissolution. In the case
of dissolution, provision shall be made for the necessary
protection of any children.
9. History of the Bill
Bill of Rights, Article 20:
Rights of children
(1) Every child shall have … the right to such
measures of protection as are required by his
status as a minor, on the part of his family,
society and the State.
(2) …
10. History of the Bill
UN Convention on the Rights of the Child
i. Child welfare paramount in upbringing –
over the rights of parents (Article 3)
ii. Emphasis on parental responsibility as
basis for guardianship (Article 18)
iii. Presumption in favour of enduring
relationship of child with both parents
(Article 9(3))
iv. Right of child to be heard (Article 12)
10
11. History of the Bill
“Child Custody and Access” (March
2005)
• Reform of guardianship and custody
law
11
Law Reform Commission Report
12. History of the Bill
Concluding Observations (September
2005) §§37-41
“remains concerned that children’s views
are not sought systematically”
12
UNCRC Report
13. History of the Bill
2011-2012
Government launched public consultation
on “Child Custody and Access:
Whether to Implement the "Joint
Parental Responsibility Model" by
Legislative Means”
13
‘Green Paper’ Consultation
14. History of the Bill
Current consultation ends 25 March 2016
Includes Draft Bill
14
‘White Paper’ Consultation
http://www.lwb.gov.hk/parentalresponsibility_consult/index_e.html
15. Structure of the Bill
“Reform and consolidate the law relating
to responsibilities and rights of parents
for children, particularly in relation to
proceedings involving children; to
provide for the appointment and
powers of guardians; and to make
related and consequential
amendments.”
15
What is the Bill?
16. Structure of the Bill
UK Children Act 1989
Replace the Guardianship of Minors
Ordinance (Cap 13)
Amend other Ordinances
16
Structure
17. Headline Reforms
• Parental Responsibility Model
• New range of child-related orders
• Update and clarify law
• Unmarried fathers
• ‘Grandparent’ applications
c.f. CLP v CSN [2016] 1 HKLRD 272
• Applications by children
• Care and Supervision Orders
17
18. New Language & Orders
• Access = Contact
• Care and Control = Residence
• Guardianship, Custody = Parental
Responsibility
• Welfare Checklist (now statutory)
• Some remain the same:
Maintenance, Removal, ‘Guardian’
18
19. New Orders
who will the child live, spend time or
otherwise have contact with
19
Child Arrangements Order
cl 28(1)(a)
20. New Orders
prohibit the exercise of certain aspects of
parental responsibility
(e.g. non-removal from jurisdiction)
20
Prohibited Steps Order
cl 28(1)(b)
21. New Orders
determine specific questions relating to
matters other than residence, contact
or maintenance
(e.g. schooling, extra-curricular
activities)
21
Specific Issues Order
cl 28(1)(c)
24. New Orders
Replace provisions in GMO (s 13) and
MCO (Part VII)
New grounds same as PCJO (Cap
213) (s 34)
Provide ‘right of access’ (cl 57)
24
Care & Supervision Orders
cl 51
25. Views & Representation
of Children
• How views expressed (cl 60)
• No requirement to express views (cl 61)
• Independent representation (cl 62)
• Direct representation*** (cl 63)
25
26. Child Contact Centers
Typically used:
• contact is being resumed after a break,
and concerns are raised
• Allegations of domestic violence, abuse
• parental alienation or implacable
hostility
• necessary in best interests
26
Safe, neutral, child-focussed venues for
supervised access, visits and changeovers
28. Instructing an Expert
• Relevance
• In proportionate to the issues
• Expertise/experience in court
• Anonymised preliminary enquiries (PD 15.12)
• Permission to instruct! (PD 15.12/O.38 r.6)
29. Contents
• Qualifications
• Facts, assumptions, and instructions
• Reasons for opinions
• Issues outside expertise
• Literature/other materials
• Other investigations
• Statement of truth
• Duty to court
• Code of conduct
33. Multiple Experts
Multiple experts (usually 2), give
evidence simultaneously
See A Local Authority v A (No 2) [2011] 2
FLR 162, per Ryder J at §§22, 23
33
“Hot-tubbing”
34. Single Joint Experts
O 38 r 4A (Court is tie breaker)
Cannot instruct expert without
considering Single Joint Expert (PD
5.2, para 20)
Will have to explain to the Court
(PD 15.11 at §5 and FDR)
(PD 15.13 at §13 and CDR)
34
MUST CONSIDER SJE
35. Single Joint Experts
[2003] 1 FLR 573
(Red Book, pp 1500-1502)
Ancillary Relief: Proportionality
Children: Best Interests
35
Best Practice Guide
36. Single Joint Experts
- Vetting Expert
- Instructions come from Court
- Letter of instruction (joint)
- Conferences (joint)
36
Reports and Evidence
38. Children’s Experts
- Issued by or through the assistance of
the SWD
- Relevant consideration for Best
Interests (GMO s 3)
- “Eyes and ears of the Court”
38
SIRs and ISIRs
39. Children’s Experts
- Not infallible / no special weight
- Must not become “too involved” with a
party so as to create appearance of
bias ([1987] 1 FLR 418 at 419)
- No duty to give reasons for departure
39
SIRs and ISIRs
40. Children’s Experts
- Important step requires leave
- Children proceedings are confidential
requires leave
- Avoid appearance of bias / over
involvement with party
40
CPs and Other Specialists
41. Enforcement
Part 1: General Issues
Part 2: Judgment Summonses
Part 3: Other Orders
Part 4: Foreign Judgments
43. Plan Ahead!
• Settlements
• Security for costs
• Injunctions
What can I enforce against?
• Property
• Person
• Income
43
44. Time Limits
• Judgment debts = 12 years
• Arrears on judgment interest = 6 years
• s.4(4) Limitation Ordinance (Cap.347)
• Re Li Man Hoo [2013] 4 HKLRD 247 (CA)
• (cf. Lowsley v Forbes [1999] 1 AC 329 (HL))
• Leave to claim arrears >12 months
• s.12(1) MPPO (Cap.192)
• (Perhaps not for foreign judgments, see: CY v
PYKC [2005] HKCU 1819) (DC))
44
45. Special Circumstances
• Burden on judgment creditor
• L v C (FCMC 11799/1996, unrep., 8 November
2012, DC)
• Irregular or reluctant payer: not special enough
• CSL v WWK [2004] HKCU 226 (CA)
• Unable to obtain legal advice?
• Arif v Anwar [2014] EWHC 4669 (Fam)
46. Undertakings
• Wider than court orders!
• Harris v Harris [2001] Fam 502 (HC)*
• If possible in writing and signed by
promisor
• S/he understands the terms
• S/he understands the consequences
• Discretion to revoke or modify at any time
• Hudson v Hudson [1966] 2 WLR 398 (HC)
46
47. Execution of Documents
• Secured payments / transfer or sale of
property -> Registrar of the High Court
• (s.26(a) MPPO)
• Apply to the right court!
• Wasted costs: Lai Yin Fun v Wong Fai Kun
(HCMP 7967/1999, unrep., 28 Nov. 2000)
• s. 25A HCO, s.38A DCO
47
48. Stays of Execution
• Appeals to the Court of Appeal (O.59 r.13 RHC)
• Will the appeal be rendered nugatory?
• Matters occurring after judgment (O.45 r.11)
• ‘going to the validity of the judgment’
• Inherent jurisdiction
• Abuse of process
• Fieri facias (O.47 r.1)
• Special circumstances render enforcement inexpedient
• Unable to pay
50. Beware!
• Oral examination + process of committal
• Likely ‘penal’ proceedings for HKBOR Arts.10 & 11
• Engels v Netherlands (No 1) (1976) 1 EHRR 647
• Mubarak v Mubarak [2001] 1 FLR 693 (CA)
• Last resort in family proceedings
51. CJ’s Working Party on FPR
197. The Working Party is concerned about the
constitutionality of our provisions regarding judgment
summons for the reason that previous similar
English provisions were held in contravention of the
European Convention on Human Rights. We
considered that there is a real risk that our provisions
might be held inconsistent with the Hong Kong Bill of
Rights.
52. Fair Trial
• Presumption of innocence
(proof beyond reasonable
doubt)
• Nature and cause of the
charges
• Time and facilities to
prepare
• Tried without undue delay
• Tried in his/her presence
• Legal assistance
• Examine witnesses
• Free assistance of an
interpreter
• Privilege against self-
incrimination (includes
documents)
• Open court…
53. HKBOR Compliance
• Concise summary of the case
• Oral evidence and witnesses
• Documents relied upon
• Expert evidence
• Privilege against self-incrimination
• Cannot rely on findings made at the civil standard
55. O.48 Pros
• Available for non-money orders (O.48 r.2)
• Officers of corporate bodies (O.48 r.1(1))
• Suspended sentences (MCR r.87(6))
56. O.48 Process
• Ex parte affidavit (MCR r.86(1))
• Amount and calculation
• Exhibit order
• Form 22 Praecipe (MCR r.87(3))
• Form 23 Judgment Summons (with penal notice)
• Personal service (10 clear days) + travel expenses
• Directions hearing
• (Committal for non-attendance!)
57. (1) Imprisonment
• MCR r.85(c): ‘fails to show cause’
• “whether he had the ability to make the payments
ordered and whether he has wilfully failed to do
so” (BT v YHK (FCMC 943/2011, unrep., 29 May
2015))
• ‘in family cases it should be the very last resort…’
• ‘shown contumelious disregard…’
• 3 months maximum (s.21A HCO / s.52D DCO)
58. (2) Payment by installments
• MCR r.87(5)(a): “make a new order for payment of the
amount due under the original order” (i.e. not variation)
• No surcharge/interest for MPS!
• KJ v KMLM (HCMC 4/2010, unrep., 21 May 2014)
59. (3) No order
• X v Y (FCMC 536/1997, unrep., 21 June 2002):
“The maximum he can afford is a small surplus from
his income of about $6,000 per month. One does not
need to be a mathematician to work out that
including accruing interest, this would take more or
less 100 years. It is not a practical solution."
60. O.49B Pros
• Power of arrest (by bailiff)
• Prohibition order
• Imprisonment during adjournment
61. (1) Imprisonment
• O.49B r.1B(1):
(a) is able to satisfy the judgment…
(b) has disposed of assets with a view to avoiding
satisfaction of the judgment…
(c) has wilfully failed to make a full disclosure (?)
62. (2) Instalments
• O.49B r.1B(2)(a): “it may order him to satisfy the
judgment in such manner as it thinks fit.”
• Debtor may then apply to discharge/vary/suspend
63. Application to Vary
• Hear first (in chambers)
• Stand down to reconsider
• C (Formerly known as C) v H [2012] 3 HKLRD 351
65. Writs of Execution
• Fieri facias
• Sequestration
• Possession
• Delivery
• Writs in aid
66. Writs of Execution
• Fieri facias (seize and sell property)
• Sequestration (detain property)
• Possession
• Delivery
• Writs in aid
67. Fieri Facias
• Obtain leave?
• MCR r.86(2) / O.46 r.2
• File signed praecipe and copy of the order, pay fee
• Register writ against land in Land Registry (priority)
• Property that can be sold
• s.68B DCO/s.21D HCO: land, goods, money, etc…
• NOT: shares in private company / tools of trade /
necessary tools, apparel and bedding up to $10,000
68. Sequestration
• Enforce mandatory & prohibitory orders
• Personal service of the order, penal notice (O.45
r.7)
• Obtain leave! (O.46 r.5)
• Draconian
• Prove deliberate disobedience (at criminal standard)
• Commissioners
70. Prohibition Order
• Preventing judgment debtor leaving Hong Kong
• (s.21B HCO, s.52E DCO)
• Before or after default, or proceedings
• Probable cause debtor will leave thereby obstruct
performance
• Generally ex parte by affidavit
• Serve sealed copy of order on Director of
Immigration, Commissioner of Police, and debtor
(O.44A r.6)
71. Charging Order
• Over: land/certain securities/funds in court/in trust
• Register in the Land Registry!
• Ex parte with affidavit, for order to show cause at
inter partes hearing (O.50 r.1)
72. Garnishee Order
• Solely and beneficially owned debts of third parties in
the jurisdiction (O.49 r.1(1))
• Includes bank deposits (s.21 HCO & s.52C DCO)
• Not contingent liabilities(O.49 r.2)
• Service (debtor and garnishee)
• Ex parte with affidavit, for order to show cause at inter
partes hearing
• Can be enforced against the garnishee as a final order
for payment (O.49 r.4(2))
73. Attachment of Income
• Divert debtor’s wages:
• Periodical payments/lump sums: s.28 MPPO, s.9A SMOO,
s.20 GMO
• Not MPS!
• There is income and, either:
• Has failed to pay, or
• Reasonable grounds to believe
• Applies to civil servant’s wages
• Summons with supporting affidavit
• Criminal offence!
74. Bankruptcy
• Priority? (s.41 BO, Cap.6)
• Earning capacity?
• Maintenance not a provable debt
• Re Lo Man Hong [2013] 4 HKLRD 126 (CFI)
• Lump sum by installments?
• CH v MEH [2012] 1 HKLRD 751 (CA)
• Set aside as an abuse?
• Re Li Kam Kwan (HCB 749/2005, unrep., 21 September
2006, CFI)
75. Committal
Any act done or writing published calculated to
obstruct or interfere with the due course of justice or
the lawful process of the courts
• Contumacious = not casual or accidental
• Beyond reasonable doubt
• Last resort in family proceedings!
76. Procedure
• RHC applies (MCR r.3)
• Leave (O.52 r.2)
• Originating summons with statement and affidavit
(O.52 r.3(1))
• Service
• Open court
• Sentencing (no maximum)
• Application to discharge (O.52 r.8(1))
77. Hadkinson Orders
• Refuse to hear submissions
• Hadkinson v Hadkinson [1952] 2 All ER 567
• Never on a committal application
• Prove contempt (to the civil standard)
80. At Common Law
• In personam
• Definite sum
• Final judgment (maintenance?)
• Defendant resident in/submitted to foreign
jurisdiction
(see s.4 FJ(RRE)O, Cap. 46)
81. MO(RE)O
• Reciprocating countries
• Provisional Order or Maintenance Order?
• Register/confirm
• Enforcement by Registrar (MO(RE)R r.8(2))
• Vary/remit
