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Hong Kong Law Reform Commission |
“Divorce is a growing problem in Hong Kong. The number of divorce cases has increased sharply over the past two decades. In 1981, ... couples filed 2,811 divorce petitions. The figure rose to 6,767 in 1990 and to 13,737 in 2001. According to the Hong Kong SAR Judiciary, 13,425 divorce Decrees Absolute were granted in 2001, six times the number (2,060) granted in 1981.”[45]
2.1 It
has been observed[46] that
approximately ten percent of the total number of divorce cases which arise each
year in Hong Kong involve disputes which need to be settled in ancillary
proceedings in court. It has also been noted that a large amount of public
money is spent annually on legal aid costs to assist couples seeking
divorce.[47] Potentially cheaper
and speedier methods of resolving family disputes have therefore been actively
pursued in Hong Kong in recent years, the principal model being
mediation.
2.2 This chapter begins by outlining the existing court
process related to divorce and child custody matters. In the second part of
this chapter we examine the non-adversarial support services now available in
Hong Kong to assist in the resolution of family disputes.
2.3 The usual steps taken in the legal process of divorce are set out
below.[48] The arrangements to be
made in respect of the children are obviously an integral part of this divorce
process.
(1) The applicant spouse first files a petition for divorce in the Family Court Registry or the parties make a joint application for divorce.[49]
(2) Where a petition has been filed, the respondent spouse is served with the petition and may reply to it.
(3) In some cases there may be urgent applications for interim orders such as interim custody, access or maintenance.
(4) Affidavits may be filed at this stage.
(5) The matter then comes into the court list for a decree nisi.
(6) Usually the divorce decree itself is undefended, though there may be disputes concerning property, maintenance, custody or access. If the divorce is undefended, the petitioner will be called to verify the accuracy of the petition and the statements concerning the arrangements for any children. This is in open court. The respondent may or may not attend. If he does attend, the judge will confirm whether the respondent wishes to defend the proceedings.
(7) If there has been agreement on custody, access and other matters, the judge can approve the agreement and make final orders.
(8) Six weeks after the granting of a decree nisi, an application for the decree absolute can be made. The decree absolute will issue approximately two months later.
2.4 Before a decree absolute can be granted, the court must be
satisfied with the arrangements for the
children.[50] (In cases where the
parties have reached agreement, however, there is concern that long divorce
lists may mean that the judge has little time to consider the arrangements for
the children, particularly as social inquiry reports are not prepared for the
court where the parties agree.)
2.5 If no agreement has been reached on custody or access, the case
will be adjourned to a call over date. At the call over, the court gives
directions on what steps should be taken before the case is ready for
hearing,[51] such as whether the
preparation of a social welfare officer’s report, or the expert report of
a child psychologist, is required.
2.6 It is preferable that affidavits
are not lodged until after the social welfare officer’s report or the
psychologist’s report is available. This is because some cases will
settle as the parties will decide to abide by the recommendation of the social
welfare officer’s report.
2.7 At the next call over, the report
will be available to the judge and the parties. The social welfare report,
which can take some months to
prepare,[52] is prepared by one of
the officers attached to the Family and Child Protective Services Units
(formerly the Child Custody Services Unit) of the Social Welfare Department.
The social welfare officer will meet the family and see the child separately
with each parent and the officer’s report is based on his observations and
assessment. While the report is awaited the status quo is maintained, which can
operate to the disadvantage of the spouse who does not have physical
custody.
2.8 While the court will seek reports from a social welfare
officer, it will not generally seek a psychiatric report. Where an examination
is felt to be necessary for a special reason, then the particular expertise
required to assist the court will be readily apparent and the court will be able
to make an appropriate order.
2.9 If the matter settles after the submission of the social welfare
officer’s report, then an order can be made by consent. If it still has
not settled, the court will give directions as to what affidavits or
affirmations should be filed, and for the attendance of the social welfare
officer or psychologist for cross-examination. A mutually convenient date for
the contested hearing will be allocated by the court registry after filing of
the affidavits date.
2.10 Order 25 of the High Court Rules provides for a Summons for
Directions, which can be used to establish pre-trial reviews. Pre-trial reviews
or settlement conferences provide for meetings between the parties and the
judge, with or without their lawyers, to help identify the issues that are
actually in dispute. Such meetings can also be used to encourage a settlement
of the dispute, though this does not seem to be used in Hong Kong for that
purpose. The judge’s role in this situation is that of a
facilitator.
2.11 While those cases which are not settled are in the minority,
they usually involve more bitterness. Children can have a symbolic significance
which makes this type of litigation bitter and
protracted.[53] It can lead to
subsequent child abduction. Delay over a custody battle worsens the trauma for
both children and spouses.
2.12 Because the court has jurisdiction to ensure that the welfare of
the child is the paramount consideration, it is possible to apply to vary a
custody or access order even if this was made by consent. Justification for
such a variation can include, for example, a change in the living arrangements
of the parent by remarriage or the need for more flexible arrangements as the
children grow older.
2.13 One of the earliest developments in this area was the
establishment of the Marriage Mediation Counselling Project in 1988 by the Hong
Kong Catholic Marriage Advisory
Council.[54] This was followed in
1989 by proposals from the Hong Kong Council of Social Service Task Group for
the setting up of a court conciliation co-ordinator at the family
court.[55] In 1992, the Law Reform
Commission recommended that the Government should give priority to publicising
family mediation and conciliation services in Hong Kong, as well as give
consideration to the future expansion and development of such
services.[56]
2.14 Some
years later, there was still little sign of official development in the area of
family mediation.[57] What had been
happening instead was that a small group of lawyers and social workers had been,
"responding to the needs and problems of separating and divorcing couples by
undergoing specialist training in family mediation or dispute resolution, and by
offering mediation service through their employing agencies or through private
practice.”[58]
2.15 The
idea of introducing alternative dispute resolution for Hong Kong family cases
was raised again in 1996 by the Chief Justice's Working Group looking into
matrimonial proceedings.[59]
Unfortunately, it was concluded that it was premature at that time to establish
a court annexed mediation scheme, but that the option should be examined again,
"when a reasonable pool of professionally qualified mediators was available
in Hong Kong."[60]
2.16 In 1997, both the Hong Kong Family Welfare Society and Resource:
The Counselling Centre launched divorce mediation services. In October of that
year, the Chief Justice convened a Working Group to Consider a Pilot Scheme for
the Introduction of Mediation into Family Law Litigation in Hong Kong
(“the Working Group on the Pilot Scheme”).
2.17 In December 1998, we released our Consultation Paper on
guardianship and custody of children, which included a number of recommendations
on court-annexed mediation and mediation generally (which are, of course, the
subject of this report).[61] Our
proposals on court-annexed mediation were broadly in line with the final
recommendations of the Working Group on the Pilot Scheme which issued its report
in April 1999.[62]
2.18 The recommendations of the Working Group on the Pilot Scheme,
which led to the subsequent implementation of the Scheme, are summarised
below.[63]
2.19 The Working Group recommended that a three-year pilot scheme
should be run to test the effectiveness of mediation in resolving matrimonial
disputes in Hong Kong.
2.20 It was recommended that information and mediation sessions
should be provided to litigants under the pilot scheme on a voluntary, not
compulsory, basis. Accordingly, the litigants’ attendance at the sessions
would not be compulsory.
2.21 The Working Group recommended that litigants should be given the
choice of mediators from a list of those qualified, including mediators from the
Social Welfare Department, non-government organisations and those from private
practice.
2.22 The Working Group recommended that funding should be provided to
the Social Welfare Department, non-government agencies and mediators in private
practice for the provision of mediation services. It was also recommended that
a balance should be struck between the need to ensure that the scheme operated
in a cost-effective manner and the importance of providing a quality mediation
service.
2.23 The Working Group recommended that a certain number of
mediation sessions should be provided free of charge under the pilot scheme to
encourage litigants to try the service.
2.24 It was recommended that a post of full-time Mediation
Co-ordinator, with the support of a full-time secretary and a clerk, should be
created. It was also recommended that the Mediation Co-ordinator's Office
should be accommodated in the Family Court to give a clear indication to legal
practitioners and litigants of the court's full support for
mediation.
2.25 The Working Group recommended that there should be a
lead-in period of six months before the commencement of the pilot scheme to
enable the Mediation Co-ordinator to prepare information leaflets on mediation
and organize activities to promote awareness and understanding of the service
among family judges, the legal profession, court registry staff, the government
departments concerned, social welfare agencies and members of the
public.
2.26 As lawyers were expected to be the chief agents for referral to
mediation, it was recommended that lawyers should be obliged to advise their
clients of the availability of mediation services and to give information
leaflets on mediation prepared by the Co-ordinator to their clients. As proof
of this, it was recommended that lawyers should be required to file with the
court a "Certificate as to Mediation" form. It was recommended that the
Certificate should be introduced by way of a Practice Direction issued by the
Chief Justice.
2.27 The Working Group recommended that a steering committee should
be appointed by the Chief Justice to oversee the implementation of the pilot
scheme.
2.28 It was recommended that, at the end of the second year, an
interim evaluation of the scheme should be conducted by an independent research
team. It was also recommended that a full evaluation of the scheme should be
carried out at the end of the three-year period.
2.29 The implementation of the Working Group’s
recommendations began soon after the release of its report, with the setting up
of the Mediation Co-ordinator's Office at the Wanchai District Court in June
1999. In May 2000, the Pilot Scheme on Family Mediation, funded and monitored
by the Judiciary, was officially launched.
2.30 Outlined below is a description of how the Pilot Scheme operates
in the various situations which might arise in divorce
proceedings.[64]
Before litigation begins
1. The Mediation Co-ordinator may receive requests for information and/or referral from one or both spouses before litigation has commenced.
2. If one spouse alone seeks assistance, the Mediation Co-ordinator will issue a letter to the other spouse inviting that party to participate under the scheme. If the other party is willing to attempt mediation, the Mediation Co-ordinator will invite both parties to attend an information session.
3. If both parties seek mediation, the Mediation Co-ordinator will arrange for them to attend an information session. In these circumstances, mediation will be conducted without the court being involved.
4. If the other party refuses to attend an information session or thereafter to attempt mediation, the Mediation Co-ordinator will inform the other party of this. Again, the court will not be involved.
When matrimonial proceedings are instituted
1. When one spouse consults a solicitor and decides to institute matrimonial proceedings, the solicitor will be required to:
(a) advise the petitioner of the availability of mediation and how it may assist in the proceedings; and
(b) give the information leaflet on mediation prepared by the Mediation Co-ordinator to the petitioner.
2. As proof that the solicitor has fulfilled these requirements, the solicitor will be required to file a “Petitioner’s Certificate as to Mediation,” duly signed by the petitioner and the solicitor, when the divorce petition is filed.
3. If the petitioner indicates a wish to attempt mediation and is legally represented, the solicitor will file the Certificate with the Mediation Co-ordinator. If the petitioner is not legally represented, the Family Court Registry will file the Certificate with the Mediation Co-ordinator.
4. The Mediation Co-ordinator will write to the other party to seek his or her consent to participate. If the other party consents, the Mediation Co-ordinator will arrange for both to attend an information session. If the other party refuses to attend an information session or thereafter to attempt mediation, the Mediation Co-ordinator will inform the petitioner or his or her solicitor of this.
5. The petitioner or the petitioner's solicitor should serve on the respondent, in addition to the Petition, the information leaflet on mediation, the signed “Petitioner’s Certificate as to Mediation,” and the “Respondent’s Certificate as to Mediation” form.
6. The respondent will be required to complete the “Respondents Certificate as to Mediation” form. If the respondent indicates a wish to attempt mediation, the Registry will refer the request to the Mediation Co-ordinator who will then contact the petitioner to seek consent. If the petitioner consents, arrangements will be made for both to attend an information session. If the petitioner refuses to attend an information session or thereafter to attempt mediation, the Mediation Co-ordinator will inform the respondent of this.
7. When a petitioner acting in person files a petition at the Registry, the Registry staff will hand to the petitioner the information leaflet on mediation together with the “Petitioner’s Certificate as to Mediation” form. If the petitioner indicates a wish to attempt mediation, the above procedure will apply.
8. If the spouses make a joint application, the Registry will give them the “Applicants’ Certificate as to Mediation” form to complete.
After litigation has commenced
1. During the course of litigation, either party may file an “Application for Mediation” with the Mediation Co-ordinator. If one party files the application, the Mediation Co-ordinator will send a letter inviting the other party to participate. If the other party consents, both will be invited to attend an information session. If the other party refuses to attend an information session, or thereafter to attempt mediation, the Mediation Co-ordinator will inform the party requesting mediation of this
2. A party’s application for mediation will not lead to an automatic stay in the legal proceedings. For example, parties who agree to divorce but do not agree on ancillary matters may proceed to obtain the decree nisi for their divorce while they are seeking to resolve other matters through mediation. Trial dates may still be set and pleadings completed while mediation takes place.
After mediation has been completed
1. The Mediation Co-ordinator should submit a report to the court giving the results of the mediation. Such reports shall be couched in neutral language advising the judge that –
(a) mediation was sought but neither party attended an information session
(b) one or both parties attended information sessions and thereafter no referral to mediation was made
(c) there was a meeting with the Mediation Co-ordinator or the mediator who considered that this case was not suitable for mediation
(d) mediation did take place but the parties were unable to resolve any issues
(e) mediation did take place and the parties were able to resolve certain issues (eg, divorce, custody and access, maintenance, financial matters generally).
2.31 While a judge may encourage parties to attempt mediation in
appropriate cases, the judge should at all times maintain his neutrality as he
will adjudicate cases after litigants have attempted mediation but the outcome
has not been successful. A judge should therefore not be seen to be working
hand in hand with the Mediation Co-ordinator, nor should there be any inference
that he may be biased either for or against one party because of the outcome of
mediation.
2.32 In accordance with the recommendations of the Working Party on
the Pilot Scheme, a consultancy study was commissioned part-way through the
scheme to evaluate a number of aspects of the service provided. The issues to
be addressed in the evaluation
included:[65]
2.33 The Interim Report on the Pilot Scheme, published in April 2002,
made a number of findings and
recommendations.[66]
2.34 The study found that:
2.35 Overall, the study indicated that:
2.37 In order to gauge public perceptions of the Pilot Scheme, the
researchers carried out two opinion polls; the first, in September 2000, sampled
828 persons; the second, in January 2002, sampled 915 persons. In relation to
questions noted below, the researchers found that:
2.38 The study concluded that there was considerable evidence that
family mediation was a viable option for family dispute resolution in Hong Kong.
The study therefore recommended that the Administration should consider
continuing to fund the scheme for family mediation service on a long-term
basis.[95]
2.39 The study noted that, although amongst mediators there was
sympathy for the idea that mediation should be made compulsory, this would be at
odds with the voluntary nature of the service, and was an issue which needed to
be very carefully considered. It was recommended, however, that applicants for
legal aid in matrimonial cases should be required to attend information sessions
at the Mediation Co-ordinator’s
Office.[96]
2.40 The name of the mediation service was found to be an issue, as
it appeared that the service was sometimes mistaken for a marital reconciliation
service. It was therefore recommended that the name of the service should be
changed to overcome this potential for
misunderstanding.[97]
2.41 It was recommended that there was a need to reconsider the
process of screening cases and the role of the Mediation Co-ordinator in this
process. This was to ensure that the approach for screening cases into the
system was not too inclusive, as this might run the risk of admitting
significant numbers of unsuitable
applicants.[98]
2.42 The study noted that different service providers (ie, mediators
drawn from Social Welfare, NGOs and private practitioners respectively) appeared
to appeal to different categories of users. It was therefore recommended that
the current “pluralistic” model of service should be maintained,
rather than a unitary model, dominated by just one type of service
provider.[99]
2.43 It was
also recommended that mediation should be maintained as an option for couples
throughout the entire divorce and ancillary proceedings process, whether or not
they had chosen to receive it at an earlier
stage.[100]
2.44 The researchers observed that “cross-talk” between
family mediators and the legal aid lawyers representing the litigants could be
an issue, as the work of the lawyers often conflicted with that of the
mediators. It was therefore recommend that, for legal aid clients, a serial
mode of service (whereby undertaking mediation preceded the provision of legal
service) was preferred to both services running
concurrently.[101]
2.45 The study found that provision of a totally free mediation
service might not be in the best interests of the users, and that some
fee-charging was acceptable and might increase the motivation of service users
to make better use of the service. It was therefore recommended that, if family
mediation were to be offered on a long-term basis, a fee-charging mechanism
could be introduced for users able to afford the
service.[102]
2.46 We have seen from the preceding discussion that utilizing
non-adversarial means of resolving family disputes, particularly through
referral to mediation, is now a strongly developing trend in Hong Kong. In the
remainder of this report, we examine how this emerging approach might be further
refined, particularly in relation to its interface with the adversarial family
litigation process.
[45] Hong Kong Polytechnic University, Evaluation Study on The Pilot Scheme on Family Mediation: Interim Report (Apr 2002), at para 4.
[46] Hong Kong Polytechnic University (2002), above, at para 5.
[47] Same as above. The example given is that in 2000-2001, approximately one-third ($144 million, or 36%) of the total civil legal aid cost was spent on about 5,000 disputed and non-disputed matrimonial cases.
[48] For a useful discussion of the relevant court procedures, see Hewitt (ed), Liu, McDonagh, Melloy and Warren, Hong Kong Legal Practice Manuals: Family (1998), especially Chapters 7 and 9.
[49] See sections 11, 11A and 11B of the Matrimonial Causes Ordinance (Cap 179).
[50] See section 18 of the Matrimonial Proceedings and Property Ordinance (Cap 192).
[51] Warren and Francis, Divorce and Separation in Hong Kong (1995), at 86.
[52] Same as above. However, Social Welfare Department have informed us that the current time is six to eight weeks.
[53] Wallerstein and Blakeslee, Second Chances: Men and Women a decade after divorce (1989).
[54] See The Hong Kong Marriage Advisory Council, Evaluative Research Report on the Marriage Mediation Counselling Project (Oct 1991).
[55] See Hong Kong Council of Social Service Task Group on Family Court, Proposals on the Establishment of a Family Court in Hong Kong (1989), at 15-17.
[56] HKLRC, Grounds for Divorce and the Time Restrictions on Petitions for Divorce Within Three Years of Marriage, Topic 29, Nov 1992, at paras 8.33-8.41 and 9.11.
[57] There was, however, development of mediation in relation to non-family matters, with the establishment, in January 1994, of the Hong Kong Mediation Council (HKMC). The HKMC was set up within the Hong Kong International Arbitration Centre.
[58] Hong Kong Polytechnic University (2002), above, at para 3.
[59] See Report of the Working Group to Review Practices and Procedures Relating to Matrimonial Proceedings (Aug 1996), Part XII. (The Working Group was chaired by HH Judge Hartmann, as he was then.)
[60] As subsequently referred to in: Report of the Working Group to Consider a Pilot Scheme for the Introduction of Mediation into Family Law Litigation in Hong Kong (1999), at para 1.1. (This later Working Group was also chaired by The Hon Mr Justice Hartmann.)
[61] HKLRC Sub-committee on Guardianship and Custody, Consultation Paper: Guardianship and Custody (Dec 1998), Chapter 12 and Chapter 15 (Parts G and H).
[62] Working Group to Consider the Pilot Scheme (1999), above. (A number of the members of the LRC Sub-committee were also members of the Chief Justice's Working Group.)
[63] Working Group to Consider the Pilot Scheme (1999), above, at Part VIII (summary of recommendations).
[64] This description is closely based on the explanation of the process presented by the Working Group in its report. See: Working Group to Consider the Pilot Scheme (1999), above, at Appendix F.
[65] Hong Kong Polytechnic University (2002), above, at para 10.
[66] Same as above, at 5 to 32; see also the Interim Report's Executive Summary.
[67] Same as above, at para 33.
[68] Same as above, at para 34.
[69] Same as above, at para 39.
[70] Same as above, at para 36. It was noted (at para 39) that the two full-time Social Welfare Department mediators “had a disproportionate share of cases referred from MCO.”
[71] Same as above, at paras 40 to 42.
[72] Same as above, at paras 44 and 45.
[73] Same as above, at para 48.
[74] Same as above, at paras 49 and 50.
[75] Same as above, at para 58a and 58c.
[76] Same as above, at para 58b.
[77] Same as above, at para 58d.
[78] Same as above, at para 58e.
[79] Same as above, at para 52.
[80] Same as above, at paras 55 to 56.
[81] Same as above, at para 57a.
[82] Same as above, at para 57d.
[83] Same as above, at para 14.
[84] Same as above, at para 15.
[85] Same as above, at para 17.
[86] Same as above, at para 18.
[87] Same as above, at para 19.
[88] Same as above, at para 20.
[89] Same as above, at para 22.
[90] Same as above, at para 21.
[91] Same as above, at para 23.
[92] Same as above, at para 24.
[93] Same as above, at para 25.
[94] Same as above, at para 26.
[95] Same as above, at paras 88 to 90 and 112a.
[96] Same as above, at paras 91 to 94 and 112b.
[97] Same as above, at paras 95 to 97 and 112h.
[98] Same as above, at paras 98 to 100 and 112i.
[99] Same as above, at paras 101 to 105 and 112j.
[100] Same as above, at paras 106 and 112k.
[101] Same as above, at paras 106 to 107 and 112l.
[102] Same as above, at paras 109 to 111 and 112h(sic).