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Hong Kong Law Reform Commission |
7.1 During the course of our recent deliberations, we received
advice from counsel for the Hong Kong Central Authority under the Hague
Convention as to certain further difficulties which have come to light in the
handling of Hague Convention cases. The counsel concerned have suggested some
possible solutions for these difficulties. We find much merit in their
proposals. As this information was not available to us at the time of our
earlier consultation exercise, these are not matters on which we have consulted
the public. We nonetheless present these issues here to bring them to the
attention of the Administration.
7.2 Unlike certain other jurisdictions, Hong Kong does not have
any special system of legal aid for dealing with Hague Convention
cases.[211] Consequently, if an
overseas Hague applicant wishes to apply for legal aid in Hong Kong, he will
have to pass the same merit and means tests set by the Legal Aid Department as
other general applicants for legal aid.
7.3 Counsel for the Central
Authority have found that it is not uncommon for those who fail the legal aid
means test to experience financial difficulties in trying to meet the relatively
high legal costs incurred in pursuing Hague Convention cases in Hong Kong.
Obviously, it would be most unfortunate if Hague Convention applicants were
forced to withdraw cases to recover their children because of an inability to
pay the legal costs involved.
7.4 The Central Authority has also found
that recovering costs from overseas applicants is rarely straightforward and
often proves to be a time-consuming process.
7.5 There is also concern
that the current system of applying for legal aid might not always be able to
dispose of Hague Convention cases as expeditiously as the urgency of
international abduction cases requires. As overseas applicants are rarely able
to provide all the necessary supporting financial documents at one time, there
can be considerable potential for delay in the processing of their legal aid
applications. The counsel for the Central Authority submit that, in order to
assist the Central Authority to duly discharge its obligations under the Hague
Convention, it would be most helpful if special arrangements could be made, or
the current arrangements strengthened, to promote the expeditious processing of
legal aid applications in Hague Convention
cases.[212]
7.6 Counsel
for the Central Authority also submit that, notwithstanding the current
provision relating to costs in Hague Convention
cases,[213] the
Administration may need to consider whether Hong Kong should follow the lead of
those contracting states which offer legal aid without a means test to all
incoming Hague Convention applicants. This would help ensure that their
cases could be handled as speedily as possible.
7.7 As an
alternative, it might be considered appropriate for legal aid to be granted in
Hong Kong on the strength of the legal aid authority in the requesting state
confirming that the applicant is eligible for legal aid in that
jurisdiction.[214]
7.8 Another
matter raised in the context of legal aid concerns the extent to which the
Central Authority is kept informed of progress on Hague cases which are briefed
out to private practitioners. When a Hague Convention applicant is granted
legal aid, the solicitor assigned takes over the matter and has conduct of the
case. As he is primarily accountable to the Legal Aid Department, whether the
Hong Kong Central Authority is kept informed of the developments and outcomes in
these cases depends largely on the goodwill of the assigned solicitor. The
Central Authority counsel note that it would greatly assist the Central
Authority to duly discharge its obligations under the Hague Convention if
solicitors assigned to Hague Convention cases by the Director of Legal Aid were
required to keep the Central Authority informed of the development and outcomes
of these cases.
7.9 Counsel for the HKSAR Central Authority have queried whether
there may be a need to clarify the effect of Article 16 of the Hague Convention,
which provides that custody determinations should not be made by a court in
respect of a child who has become subject to a Hague Convention application
until the outcome of that Hague Convention application is known. Article 16 of
the Convention states:
“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” (emphasis added).
7.10 The
concern raised by the Central Authority is whether Article 16 and other related
provisions (namely, Order 121, rule 10 of the Rules of the High Court (Cap 4,
subsidiary legislation)), are effective in providing - as appears to have been
intended – for the stay of pending custody proceedings once an
Article 16 notice has been given. Order 121 rule 10(3) states:
“The Registrar, upon receipt of such notice and affidavit, shall as soon as practicable, provide the relevant authority with copies thereof.”
7.11 Although
the heading of rule 10 is “Stay of Proceedings,” counsel for the
Central Authority note that no statement appears, either in the body of Order
121, or in the body of the principal Ordinance, that when an Article 16 notice
has been given, custody proceedings in Hong Kong which relate to the subject
child shall be
stayed.[215]
7.12 If a
stay is not granted, parties to the custody proceedings may have to continue
with these in parallel with the Hague Convention proceedings. If subsequently
the court orders the return of the child under the Hague Convention, this will
have resulted in both a waste of the parties' efforts, as well as the court's
time, in having to continue to pursue the custody proceedings. Accordingly,
the effectiveness of the current provisions in Hong Kong relating to the stay
of custody proceedings pending the outcome of Hague Convention applications may
need to be reviewed, to determine whether further strengthening of these
provisions is required.
7.13 A further area of the law which counsel for the Central
Authority have suggested may need some clarification is in relation to whether
court file information pertaining to Hague Convention proceedings, which are
necessarily sensitive in nature, may be automatically treated as
confidential.
7.14 At present, the public may, upon payment of a
prescribed fee search for, inspect and obtain a copy of the originating process
in a case filed in the court
registry.[216] However, section
5(1)(a) of the Judicial Proceedings (Regulation of Reports) Ordinance (Cap 287)
prohibits the publication of information concerning proceedings which relate
wholly or mainly to the guardianship, custody, maintenance or upbringing of
children, or to rights of access to children, or to the wardship or adoption of
children. Hague Convention proceedings, which have only become applicable in
Hong Kong in recent years,[217]
are not expressly referred to in section 5. The issue therefore is whether
documents filed with the court in Hague proceedings are protected in the same
way from public scrutiny as documents filed in, for example, wardship
proceedings.
7.15 While it may be argued that Hague Convention cases are
also cases relating to the guardianship, custody, maintenance or upbringing of a
child, there may be doubts as to whether they ought to be so regarded, given
that the prime concern of Hague Convention proceedings is to return the child to
his place of habitual residence without looking into custody and related
issues.[218]
7.16 There
are certain administrative measures in place in the Court Registry to prevent
the public from having access to the court file in Hague Convention proceedings.
Also, those handling Hague Convention cases can ensure that confidentiality is
preserved by (before the originating summons is filed with the Court Registry)
applying for an express order prohibiting public search and inspection of
documents related to the
case.[219] It would, however,
save court time and put the matter beyond doubt if specific legislative
provisions could be introduced to cover the matter. The Central Authority
counsel therefore propose that, in order to better protect the interests of
children, it may be necessary to consider whether specific legislative
provisions are required to prohibit not only the publication of information
relating to Hague Convention proceedings but also to prohibit the searching and
inspection of the court file in these proceedings by members of the
public.
[211] In England, for example, legal aid is automatically granted in incoming Hague Convention cases without the necessity of the Hague applicants passing a means test.
[212] We must point out, however, that we are advised that officers in the Legal Aid Department who process the legal aid applications are very mindful of the need to treat Hague Convention cases as expeditiously as possible, and that in practice, delay may be rare.
[213] Ie, section 13 of the Child Abduction and Custody Ordinance (Cap 512), which provides that the costs of Hague applications shall not be borne by the Hong Kong authorities, except in cases where legal aid is granted.
[214] This is the approach adopted by some provinces in Canada, eg, British Columbia.
[215] It appears that Order 121 rule 10 is largely modelled on UK legislation. However, rule 6.11 of the UK Family Proceedings Rules 1991 expressly directs stay of proceedings where an Article 16 notice has been given.
[216] Pursuant to Order 63, rule 4(1)(a) of the Rules of the High Court (Cap 4, subsidiary legislation).
[217] As we have noted earlier in this report, Hague Convention proceedings have only been available in Hong Kong since 1 September 1997: see Chapter 3, above, at para 3.3.
[218] Save in very exceptional circumstances as laid down in Article 13 of the Hague Convention.
[219] The Hong Kong Central Authority has, since September 2001, committed to applying for such an order in every incoming child abduction case.