Hong Kong Law Reform Commission

Chapter 7 - Recommendations for reform – The family litigation process and related matters

• Introduction
• A new court process
• Case management and settlement
• Practice Direction
• Delay in family proceedings
• Issues and settlement conferences
• Issues conference
• Family settlement conference
• Pre-trial conference
• Social welfare officer’s report
• Report of independent expert
• Statistics and research
• Availability of judgments and privacy
• Code of conduct for family cases
• Conclusion

Introduction

7.1 In the previous two chapters we set out our recommendations concerning court-based support facilities for family mediation and family mediation services generally. In this chapter, we focus on the family litigation process itself, as well as other related matters.

7.2 As we noted in the introduction to Chapter 5, there have, in recent years, been significant developments in the area of civil proceedings in Hong Kong, with the implementation of the Pilot Scheme on Family Mediation[468] and new proposals for reform of the civil justice system put forward by the Chief Justice's Working Party on Civil Justice Reform.[469] In line with these initiatives, our own approach to reform in this area has been to focus on how to minimise the adversarial nature of family proceedings, and how to shorten potential delays in the processing of these cases by the courts. As will be seen below, this latter consideration is particularly relevant to the recommendations set out in this chapter.

A new court process

7.3 Underpinning many of our recommendations on family litigation is a new, streamlined court process for dealing with family cases. We have designed a Flow Chart (opposite) which outlines the steps in the new process we propose. A key feature in this new court process is the application of case management strategies. Accordingly, the steps set out in the Flow Chart are necessary steps in the management of family cases, with a time schedule set by the judge in consultation with the parties. The recommendations which relate to these steps in the new process are discussed below.

Proposed Case Management and Support Services

Flow Chart for Dispute Resolution Process

Case management and settlement

7.4 In relation to the current civil litigation system in Hong Kong, it has been observed by Chief Justice's Working Party on Civil Justice Reform that:

"The present system obviously allows delays to result from the parties' own lack of readiness for the trial. While many parties and their lawyers conscientiously press cases ahead without delay, the party or lawyer who wants to drag his feet can easily bring about substantial delays. ..."[470]

"Underlying this unsatisfactory state of affairs is the adversarial design of the civil justice system which leaves it entirely up to the parties to progress the case without any time tables set or enforced by the court. Moreover, viewing itself as the impartial umpire, the court has adopted the policy of putting off the trial until it is sure that the parties are both quite ready to do battle."[471]

7.5 One possible solution being considered by the Chief Justice's Working Party is to make case management part of the “overriding objective” of the civil procedure system and to adopt provisions setting out the court's case management powers. In this context, the Working Party's report[472] refers to part of the overriding objective which is contained in Rule 1 of the English Civil Procedure Rules (CPR). This states:

"1.4 (1) The court must further the overriding objective by actively managing cases.

(2) Active case management includes –

(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently."

7.6 In our Consultation Paper, we noted[473] that case management shifts the responsibility of managing cases from the lawyers to the judges and facilitates early resolution, reduces delay and backlogs, reduces the cost of litigation, and adds to the satisfaction of litigants.[474] We also noted that a settlement conference is one of the processes of case management that can encourage the right atmosphere for settlement at an early stage in the judicial process.

7.7 Such conferences can be operated by judges or registrars, though at the moment there are no registrars for management of family cases. More intervention by earlier case management may encourage settlement. The judges would also have more time to scrutinize the arrangements for the children which are the subject of consent orders. Boshier warned that case management techniques should be used as a means to effective dispute resolution and not as ends in themselves.[475] Program objectives of:

“case management (and the reduction of court delay) should not be the sole or primary reason for implementation of a program, thereby reducing rather than enhancing the rights of the parties .... It is this objective which presents the greatest danger of coercion occurring.”[476]

Practice Direction

7.8 The Court of First Instance Construction List Practice Direction and checklist requires parties to inform the court, at the summons for directions stage, whether any, and if so what, attempts have been made to resolve the dispute or any part of it by mediation. This requirement does not entail disclosing the details of any mediation, only the fact of its having taken place.[477]

7.9 A pre-trial checklist must be completed, which asks the parties whether a pre-trial review would be useful. Each party is to receive a document, prepared with the approval of the Chief Justice, which sets out the benefits of mediation, explains how the services of a mediator can be obtained, and states that if the mediation is not successful this will not affect the litigation.

7.10 An Information Sheet must be completed which includes a question whether the lay clients have received this document from the Court. Some of the questions which focus on resolution are as follows:

Issues

“5.(a) Please provide a succinct list of issues in the case.

(b) Are any of them capable of resolution by agreement?

(c) Are any of the issues in the action suitable for trial as preliminary issues?...”

Expert evidence

“7.(a) On what topic/issues may expert evidence be required?...

(d) Is there scope for agreement?...”

Trial

“8.(a) What is your present estimate of length of trial ?...

9. Would a pre-trial review be likely to be helpful?

10. Is there any way in which the Court can assist the parties to resolve their disputes without the need for a trial/full trial?

11. Have the lay clients received a copy of the notes from the court recommending mediation?
12. Have the parties attempted a mediation procedure? If not, is it suggested that they should attempt a mediation under the Hong Kong International Arbitration Centre’s rules? Would they like the Court to assist in the appointment of a mediator or to appoint a mediator?

13. Have the parties been given details of the costs incurred to date and an indication of the fees likely to be incurred if this matter goes to a full hearing?”

A pre-trial check list can also include questions such as:

“1. Have you or counsel discussed with your client(s) the possibility of attempting to resolve this dispute (or particular issues) by Alternative Dispute Resolution?

2. Might some form of ADR procedure assist to resolve or narrow the issues in this case?

3. Have you or your client(s) explored with the other parties the possibility of resolving this dispute (or particular issues) by ADR?”[478]

7.11 The Information Sheet must be lodged with the clerk of the construction judge not later than two days before the return date for the Summons for Directions. A copy must be given to each of the other parties.[479]

7.12 We therefore recommended in the Consultation Paper that procedures at the Family Court should be streamlined and that there should be continuous monitoring of the system by effective case management. We also recommended the introduction of a Practice Direction governing case management in the Family Court. Such a Direction would encourage more effective case management on an ongoing basis, and would encourage the diversion of cases from contested hearings to mediation. We did not think it was necessary at this juncture to decide the precise terms of such a Direction. However, the Construction List checklist and its associated Practice Direction might form a useful model for the Family List.[480]

7.13 We also recommended in the Consultation Paper that there should be a requirement that a pre-trial checklist be completed at the Summons for Directions stage of any case involving a dispute in relation to children.[481] We proposed that time limits should be imposed for the delivery of any affidavits associated with the case in order to minimize delay. We also recommended that judges should be given more control to reduce the costs and delay in the system. We considered that failure to conduct cases economically should result in appropriate orders for costs, including wasted costs orders.

7.14 On consultation, all of the respondents who commented on this recommendation supported it, apart from one respondent, who suggested that the case management proposals should apply to more lengthy, complex cases only, otherwise they might potentially cause delay. We have noted this view.

Delay in family proceedings

7.15 As with other types of litigation in Hong Kong,[482] there are delays in family cases in allocating a date for a full hearing. In defended family proceedings in the District Court, the performance indicator[483] is 100 days from the issue of the petition to the setting down of the case for hearing. No separate indicator is set for the hearing of custody applications. The significant effect of the delay is that the status quo of the child custody arrangements is maintained, to the detriment of the parent seeking change.

7.16 We are also of the view that further delay may result from the operation of section 15 of the Legal Aid Ordinance (Cap 91), which provides for the stay of any proceedings pending an application for legal aid. We understand that the period of stay is a maximum of 42 days. This period is needed to investigate the means and merits of a legal aid application. Priority is given to emergency applications, but custody and access cases per se will not normally qualify for priority in a legal aid assessment unless there is some specific urgency in the matter. If legislation were in place to indicate that delay in such cases would be prejudicial to the best interests of the child, more resources would need to be allocated to divert these cases into a priority list for assessing the grant of a legal aid certificate.[484]

7.17 The principle that delay may prejudice the welfare of the child is given legislative recognition in England by provisions in sections 1 and 11 of the Children Act 1989. These statutory provisions[485] reflect the psychological need of a child to have certainty and to have an early decision made in relation to custody and access. Section 1(2) states:

“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.”

Section 11(1) states:

"In proceedings in which any question of making a [custody or access] order, or any other question with respect to such an order, arises, the court shall ...

(a) draw up a timetable with a view to determining the question without delay; and

(b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to."

7.18 We therefore recommended in the consultation paper[486] that in order to promote the best interests of the child, priority must be given to the hearing of disputes concerning children (ie, custody and access, child abduction, wardship and guardianship). We recommended the introduction of statutory provisions along the lines of sections 1(2) and 11 of the Children Act 1989. We also recommended that, in the interim before legislation was enacted, target times should be set for the disposal of custody, access and guardianship disputes. These proposals were supported by all of the respondents to the consultation paper who commented in this area.

Issues and settlement conferences

Issues conference

7.19 The New Zealand Boshier report[487] recommended the introduction of an issues conference at an appropriately early time in the proceedings.[488] The issues conference would order relevant reports, make appropriate orders and directions and define the issues.[489] The New Zealand issues conference is similar to our call-over list in which directions are given.[490] The advantage of adopting the language of “issues conference” rather than retaining the language of “directions hearing”, reflects the fact that the issues conference will also deal with mediation and focus more on the issues outstanding between the parties. The issues conference, like the existing directions hearing, will be a necessary stage of the process.

Family settlement conference

7.20 Under the New Zealand proposals, once a report is available, a settlement conference would then be organised. The purpose of a settlement conference is be “to permit a judge to explore settlement options, and if no settlement seems possible, to set down for hearing on terms which are appropriate to the case.”[491] The family settlement conference would be convened when all relevant materials were before the court. The lawyers and parties would attend. At the conference, counsel should be able to advise on the legal and other costs to-date and the estimated cost if the matter were to proceed to a hearing.[492] If further directions were required between the issues conference and settlement conference (for example, because of non-compliance with directions or failure to disclose) then another conference might be called, but costs would be awarded against the unsuccessful party.[493]

7.21 Broadly speaking, both issues and settlement conferences are designed to enable the judge to explore the nature of the dispute and to assist the litigants in identifying options for resolution.[494] However, there should be a clear distinction drawn between the two types of conferences as they have different specific purposes. It is also useful to make provision for a further type of conference focusing on trial management, which would be a formal pre-trial review in the event that a settlement conference fails.

Pre-trial conference

7.22 The Saskatchewan Law Reform Commission suggested that a provision be inserted in custody legislation for pre-trial conferences. This provision combines the functions of issues conferences and settlement conferences as follows:[495]

“(A) Upon first appearance before the court in an application for custody, or at any time prior to the hearing of the application, the court may direct a pre-trial conference before the judge or other person designated by the court, for the purpose of:

(i) resolution or narrowing of issues;
(ii) disclosure of the nature of the evidence which will be presented at the hearing;
(iii) encouragement of settlement or conciliation; and
(iv) settling procedures to be adopted in the proceedings including appointment of amicus curiae, and directions of a custody investigation.

(B) (1) Upon consent of the parties, the pre-trial conference may be arranged by the registrar without an order of the court directing the conference.

(2) The pre-trial conference shall be conducted informally, in such manner as the judge or other person presiding at the conference may direct.
(3) The judge or other person who presides at a pre-trial conference shall prepare a memorandum of the matters agreed upon by the parties at the conference, and shall present the memorandum of such parties for their approval and shall file the memorandum.
(4) No evidence disclosed at the pre-trial conferences shall be admissible as an admission made at the conference, or as part of a transcript or record of the conference without the consent of the parties”.

7.23 We recommended in the Consultation Paper that statutory provision should be made for issues and settlement conferences tailored to the needs of Hong Kong. We considered that there ought to be a clear distinction between issues and settlement conferences and that these conferences would be separate from mediation.

7.24 We recommended that a settlement conference should be a necessary step in the process, unless there was a certificate filed by a party or the parties that an attempt at settlement in a settlement conference was likely to be unsuccessful and that costs would be wasted by such attendance.[496]

7.25 We also recommended that, if no settlement conference took place, there would still be a conference similar to a directions hearing at which directions for trial would be ordered. In our view, the judge would still be able to suggest settlement at that stage.

7.26 We also recommended that no evidence disclosed at these pre-trial conferences should be admissible as an admission in any subsequent hearing or proceedings, or as part of a transcript or record of the conferences without the consent of the parties.

7.27 On consultation, most of respondents who commented on this recommendation supported it, apart from two respondents, One considered that the two distinct types of conference should not be necessary, or might cause undue delay to the proceedings. The other respondent thought that the proposed conferences might add unnecessary complexity to the proceedings.

7.28 We note the views of these respondents, but would emphasise that the purpose of issues and settlement conferences is to simplify, not to complicate, the proceedings. The intention is to give the court the power to utilize these conferences in appropriate cases - for example, in complex or contentious cases where the conferences may assist in narrowing down the issues for resolution.

7.29 We also note that it is our intention that the judge would always have the power to waive the holding of these conferences if he deemed it unnecessary in any particular case.

Social welfare officer’s report

7.30 Section 3(1)(i)(B) of the Guardianship of Minors Ordinance (Cap 13) provides that the judge shall give due consideration to “any material information including any report of the Director of Social Welfare available to the court at the hearing.” It is obviously crucial that delay be avoided as far as possible in the preparation of these ”social investigation reports,” particularly when settlement is often postponed until the lawyers in the case have the opinion and recommendations of the report to hand. The Family and Child Protective Services Units of the Social Welfare Department therefore need to be adequately staffed so that there is minimal delay in preparing these reports.

7.31 On a related issue, some concern has been expressed by practitioners in Hong Kong as to the varying quality of social investigation reports furnished to the court. It is significant that other jurisdictions, such as Australia, insist on a minimum number of years of experience before a social worker is able to prepare reports for the Family Court.

7.32 We therefore proposed in the Consultation Paper that more resources needed to be put into the (then) Child Custody Services Unit to minimise delays in investigating and preparing reports for the court. We also recommended the introduction of a performance pledge that reports of social welfare officers should be completed as expeditiously as possible, but should in any case not take longer than six weeks. We further recommended that social welfare officers preparing reports for the Family Court should have a minimum of three years’ experience in family and child care work, and that their training should include the preparation of court reports.[497]

7.33 There was wide support for these proposals on consultation. One respondent noted that some flexibility needed to be built into the proposed performance pledge, as the timing for the preparation of the report would depend on the overall processing time of each case. We do not object to this suggestion, provided the proposed six-week period would apply as a maximum in most cases.

7.34 As a further point under this head, it was also suggested during the consultation exercise that, in addition to any training that social welfare officers receive, a handbook on the relevant law in this area, including a glossary of relevant terms,[498] should be prepared for those working on family cases. We hope that the Administration will give consideration to implementing this worthwhile suggestion.

Report of independent expert

7.35 Even though section 3(1)(i)(B) of the Guardianship of Minors Ordinance (Cap 13) provides that the judge shall give due consideration to “any material information,” it may be that this does not adequately empower a judge to order an independent expert’s report in the face of opposition from one of the parties. In our view, the court should be able to order a report from an expert such as a psychologist, registered social worker or child psychiatrist at the request of only one of the parties, and be able to order the other party to comply so that the expert can interview the children and both spouses.

7.36 At the moment, one spouse can veto the request so that only the social welfare officer’s report can be ordered. This may be particularly important if allegations of physical or sexual abuse were made and medical or psychological examinations were needed. It should also be possible for the court, on its own initiative, to order an expert report from a person other than the social welfare officer.

7.37 We therefore recommended in the consultation paper that the court should have a power to order a report from an independent expert, such as a psychologist, psychiatrist, paediatrician, registered social worker or other relevant expert.[499] Although one respondent expressed concern that giving the court power to order independent reports might increase the contentiousness of applications concerning children, all other respondents commenting on these recommendations expressed unequivocal support.[500]

Statistics and research

7.38 There were 12,748 petitions for divorce filed in 2000.[501] There is no breakdown available of the proportion of family cases which relate to custody or property.[502] The Family Law Association has proposed that a database be established to identify how many custody cases are agreed or disputed to assist policy-making and law reform. The judiciary were reported to have supported this in principle but had reservations about manpower.

7.39 The dearth of statistics on the number of custody, access and guardianship proceedings that are issued, and how many are contested, needs to be addressed. It would be useful to have those statistics to identify the need for changing policy or increasing resources. Indeed, the Australian and New Zealand Family Courts have research divisions which produce research papers containing not only statistics but also analyses of consumer satisfaction, assessments of the impact of new laws, and general research on the operation of their Family Courts.

7.40 We also note that section 62 of the Personal Data (Privacy) Ordinance (Cap 486) gives a specific exemption from the provision of the data protection principles where data is kept for preparing statistics or carrying out research, the data is not used for any other purpose, and the resulting statistics and research are not made available in a form that identifies the data subjects.

7.41 We therefore recommended in the consultation paper that it would be useful for the Law Reform Commission and for policymakers if statistics were kept, and research conducted, in the Family Court. We recommended that statistics on the number of custody, access or guardianship cases, including the numbers settled, and when they were settled, should be kept by the Family Court. This would assist in the planning of policies and their implementation.[503]

7.42 This proposal was stongly supported by the respondents to the consultation paper, although one respondent expressed the view that the matter should be left up to the Administration to consider whether it was feasible to resource a database of family cases.

Availability of judgments and privacy

7.43 We understand that family law practitioners are concerned about the paucity of judgments in family cases that are officially reported in Hong Kong. There are various reasons why this is so. Family cases are heard in chambers and there are some statutory provisions and a Practice Direction which restrict the availability of such judgments.[504]

7.44 If the court has given guidance on the interpretation of matrimonial ordinances in a previous case, having access to a report of that judgment may assist family law practitioners in advising their clients on possible courses of action, including the settlement of cases. It can encourage some consistency of approach, and enhance the predictability of outcomes, which assists early resolution of issues in dispute. Even though there may be less reliance on precedents in guardianship and custody cases than in other areas of law,[505] it would still be useful to increase the number of reported judgments in this area.

7.45 Practice Direction No 25.1 (formerly No 27), Reports on Chambers Proceedings, provides that:

“No report should be made of any proceedings (including the judgment) held in chambers (which are private proceedings) without the authority of the master or the judge before whom the proceedings were conducted.”

If the master or the judge considers that it should be released for publication, the parties can make representations to him.

7.46 The Report of the Working Party on Civil Proceedings conducted in private[506] stated that Practice Direction (then) No 27 had fallen into disuse. Generally, most reasoned judgments were available in the High Court Library for public inspection. “Judgments of an obviously confidential nature, such as those issued in camera, are not made available.”[507]

7.47 The purpose of the Judicial Proceedings (Regulation of Reports) Ordinance (Cap 287) is to regulate, inter alia, the publication of reports of judicial proceedings so as to prevent injury to public morals. Section 3 provides that it shall not be lawful to print or publish any particulars in proceedings for nullity, divorce or judicial separation, other than the names, addresses and occupations of the parties and witnesses; a concise statement of the charges, defences and counter-charges in respect of which evidence has been given; and the decision and the judgment of the court. Section 3(4) states that the section does not apply to the publishing of reports of proceedings by any bona fide series of law reports, or a publication of a technical character bona fide intended for circulation amongst members of the legal or medical profession.

7.48 Section 5(1) of the Ordinance provides that the publication of information relating to proceedings held in private is not contempt except where “the proceedings relate to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant.” Despite this provision, subsection 2 proceeds to state that, without prejudice to subsection (1), the publication of the text of an order made by a court sitting in private shall not of itself be contempt except where the court expressly prohibits the publication.

7.49 Article 10 of the Hong Kong Bill of Rights, which incorporated the International Covenant on Civil and Political Rights into our domestic law, in the Bill of Rights Ordinance (Cap 383), makes provision for public hearing of proceedings, but excludes the press and public “when the interests of the private lives of the parties so requires.” It also provides that any judgment shall be made public except where “the proceedings concern matrimonial disputes or the guardianship of children.”

7.50 In Hong Kong, some family judgments contain the full names and identifying details of the parties. Of course, some of these cases may have been appeals held in public in the Court of Appeal. In other unreported judgments which are released, the names of the parties on the front page of the judgment have been deleted, but sufficient identifying details are left in the body of the judgment, including names of witnesses, to facilitate identification of the parties and their children. We deplore this practice as it exposes the vulnerability of the parties, and in particular their children, to public scrutiny at a traumatic time in their lives when they are already trying to cope with divorce or separation. Leaving those details exposed in a judgment that may have been intended for release to legal practitioners only in the High Court Library does not prevent access by the press or an inquisitive member of the public.[508]

7.51 A striking example where former Practice Direction No 27 was not complied with concerned a child abduction case in which the female respondent murdered the child who was the subject of the proceedings and then committed suicide. A Hong Kong magazine published a photo of the front page of the judgment on which the full name of the child was revealed, as the court had not taken steps to delete the child’s name, though it had deleted those of the parents. The record number of the proceedings was also visible, making it easier for the judgment to be located by other members of the press.[509]

7.52 In Ireland, unreported or reported judgments are always released to practitioners and law reporters in the legal libraries with the names of the parties and their children deleted, except for the first initial (for example, “Murphy” becomes “M”). All identifying details, such as addresses, schooling, place of employment, and even the names of witnesses, are also deleted. This does not cause confusion as long as the correct date of the judgment is available. It would be useful to issue a Practice Direction regulating the release of family judgments so that, in addition to deleting the names of the parties, other identifying details would also be deleted from the judgments.

7.53 If all the identifying details were deleted then the judgments in disputes concerning children could be made more widely available to legal practitioners, encouraging the growth of a family law jurisprudence and making more information available to solicitors and counsel advising clients on the way forward.

7.54 We therefore recommended in the consultation paper that a Practice Direction regulating the release of unreported judgments in disputes concerning children should be issued to encourage their increased availability to legal practitioners. We also recommended that, for the protection of children and their parents, all identifying details, including the names of parties and their children, addresses, schooling, place of employment, and even the names of witnesses, should be deleted (except for the first initial) from all such judgments, whether unreported or reported.[510]

7.55 On consultation, all of the respondents who commented on these proposals supported them.

Code of conduct for family cases

7.56 We recommended in our Consultation Paper that a Family Lawyers’ Code of Practice should be adopted in Hong Kong. We proposed that this could include such principles as assisting constructive settlement and placing the best interests of children as a first priority. We noted that this may encourage earlier settlement by solicitors and/or referral to a mediator for the resolution of disputes on guardianship and custody. We note that there was wide support from our consultees for this proposal.

7.57 Subsequently, in July 1998, the Hong Kong Family Law Association (HKFLA) unanimously adopted its first Code of Conduct. The Hong Kong Code, though adapted for local conditions, was closely modelled on the Solicitors Family Law Association’s Code of Practice in England.[511] The then chairperson of the HKFLA commented that the Code, “clearly defines the approach that we believe lawyers truly sympathetic to issues concerning families and family law should adopt.”[512] Peaker notes:

“The Code of Conduct is not an instant solution to all problems in the area of family law. However, experience has shown that with the introduction of the [English Code], substantial improvements have been made towards a more conciliatory, constructive, and cost effective way of dealing with the majority of family law matters.”[513]

7.58 The Hong Kong Code covers such matters as the family lawyer’s relationship with the client,[514] dealing with the other party’s solicitors,[515] dealing with the other party in person,[516] court proceedings[517] and children.[518]

7.59 Mulvey summarises the rationale behind the Code in the following terms:

“It has long been acknowledged by practitioners and members of the judiciary that the adversarial system has to be tempered in divorce cases, where the interests of children and the high emotional content of the proceedings have to be taken into account. It is not enough simply to rely on the fact that our system is adversarial if conduct of a case in that way is damaging to clients.”[519]

Of the English Code, Fricker states:

“It should become part of the family law culture for most parties to be induced into mediation where there are unresolved issues. The culture should be that litigation is perceived to be the last resort ... mediation should generally, within the legal profession and by the public, be perceived to be the most appropriate way to resolve most issues on which agreement has not been reached”.[520]

7.60 The HKFLA noted that there had been difficulties in England in enforcing the Code, “despite the fact that, as early as 1988, it had been endorsed by both the UK Judiciary and the Law Society.”[521] Efforts were therefore made in the early days of the Code’s development in Hong Kong to have the Code not only recommended by the Law Society to its members, but also to have it made mandatory, so that breaches of it would be a disciplinary matter.[522] To-date, the Hong Kong Code remains voluntary, and “is viewed as an encouragement or guide to good practice. There is no provision for, nor question of, mandatory provisions.”[523]

7.61 In addition to the general Code of Practice for its members, the English Solicitors Family Law Association has also issued a Guide to Good Practice for Solicitors Acting for Children. This reflects the particular sensitivity of cases involving children, and the level of specialised experience required. The Guide supplements the Code and is intended to assist lawyers in interviewing and representing children.[524] The Foreword to the Guide states:

"The voice of the child in both public and private law proceedings is of increasing importance .... A solicitor instructed by a child plays an essential part in the professional work which ensures a young person's views are heard and considered with appropriate weight and with the respect to which they are entitled. ... This remains an area which falls outside the usual remit of our legal education and in these circumstances the best we can do is to share experiences and learn from each other. This Guide reflects just such an approach."[525]

7.62 We believe that there would be considerable value in adopting a similar Guide for solicitors in Hong Kong, in addition to the more general Code of Practice, and our Consultation Paper reflected this.[526] There remain a number of issues which we consider the Administration should invite the legal profession to address.

7.63 The first of these is whether the HKFLA’s existing Code of Conduct should be made mandatory, by formally incorporating it into the codes of the relevant professional bodies. The current voluntary nature of the Code means that it is simply a statement of principle of what is expected, with the only sanction for non-compliance being peer pressure from within the profession. If there is no power to sanction against breaches of the Code, and certain practitioners choose to flagrantly disregard it, this may have the unfortunate effect of devaluing the Code's standing in the eyes of those to whom it is supposed to apply. We are aware, however, that there is considerable sensitivity surrounding the issue of introducing a mandatory code into a specific area of practice, and that this is an issue which needs to be carefully considered by the legal profession.[527]

7.64 A second issue is whether the Code should be widened to apply (with appropriate adjustments) not only to solicitors, but also to the other disciplines working in the family litigation field (for example, barristers, mediators and social workers).[528] Again, we do not think that any decision should be taken on this question before there has been comprehensive consultation with the relevant professional bodies.

Conclusion

7.65 In conclusion, we note the pertinent comment of one writer in relation to the Hong Kong Code for family lawyers:

“There will always be difficult, hostile, protracted, and expensive matrimonial cases where the Code may have little effect. However, for the majority of cases it is believed that the Code will offer an alternative approach that will result in cases being resolved more quickly and without undue cost and emotional strain.”[529]

It is our hope that these same sentiments might be applied equally to all of the recommendations we have presented in this report.

[468] See Hong Kong Polytechnic University, Evaluation Study on The Pilot Scheme on Family Mediation: Interim Report (Apr, 2002).

[469] See Chief Justice's Working Party on Civil Justice Reform, Civil Justice Reform – Interim Report and Consultative Paper (Nov, 2001).

[470] See Chief Justice's Working Party on Civil Justice Reform (2001), above, at para 333.

[471] Same as above, at para 334.

[472] Same as above, at Executive Summary, para 35.

[473] HKLRC Sub-committee on Guardianship and Custody, Consultation Paper on Guardianship and Custody (Dec 1998), at para 12.35.

[474] See definition suggested in: Ontario Attorney General and the Chief Justice of the Ontario Court of Justice, Civil Justice Review, First Report (Mar 1995).

[475] New Zealand Family Law Report ('Boshier report') summarised in an article of that name in Family and Conciliation Courts Review (1995) vol 33, no 2, 182-193, at para 7.2.3.

[476] Katz, “Compulsory Alternative Dispute Resolution and Voluntarism: Two-Headed Monster Or Two Sides Of The Coin,” Journal of Dispute Resolution (1993) vol 1, 1 at 71-2.

[477] HKLD [1992] H 111.

[478] This is taken from the Commercial Court pre-trial checklist referred to in the “Practice Direction (Commercial Court: Alternative Dispute Resolution),” The Times, December 17, 1993 and reported in Order 72, r 11 of the White Book, at 1294.

[479] HKLD [1992] H 111.

[480] HKLRC (1998), above, at paras 12.38 to 12.39 and 15.89 to 15.90.
[481] Same as above, at paras 12.47 and 15.93.

[482] See Chief Justice's Working Party on Civil Justice Reform, above, at section E, paras 88 to 125. The Executive Summary to the report (at para 17) states: "While delays are not of crisis proportions, the available statistics show that significant delays are encountered in various areas, particularly where contested interlocutory applications or interlocutory appeals occur."

[483] As at 2000: see HK Judiciary website, at <http://www.info.gov.hk/jud/performance/index.htm>. By contrast, the performance indicators for the "undefended list" and "special procedure list" in 2000 were 56 days and 30 days respectively. Note that recent changes to the Matrimonial Causes Rules (Cap 179, subsid leg) have expanded the scope of undefended family proceedings which may be included under the special procedure list: see Matrimonial Causes (Amendment) Rules 2001 (LN 270 of 2001), which came into operation on 25 January 2002 (see LN 13 of 2002).

[484] The Legal Aid Department has submitted that section 15 of the Legal Aid Ordinance (Cap 91) need not cause delay, as the court, upon application by any parties, has power to override any stay of proceedings where appropriate.

[485] In looking at the issue in Scotland, the Scottish Law Commission suggested that it was more appropriate to deal with the matter by rules of court: see Scottish Law Commission, Report on Family Law (1992, Report No 135, HMSO), at para 5.42.

[486] HKLRC (1998), above, at paras 12.6 and 15.82.

[487] Boshier report (1995), above.

[488] An issues conference could be organised once it was clear that the respondent had filed an Answer contesting the proceedings.

[489] The parties would in advance have clearly defined the issues and the relief sought in a memorandum filed in court: Boshier report (1995), above, at para 6.5.7.

[490] Though if the parties file a consent summons, there may be no need for a directions hearing.

[491] Same as above, at para 6.5.8.

[492] The final report of Lord Woolf, on the extensive civil justice reforms proposed for England, suggested that the presence of clients at case management conferences, when past costs and future estimates are considered, “will be a powerful incentive to adopt a realistic approach”: see Access to Justice (Jul 1996, HMSO), at 82-86.

[493] Boshier report (1995), above, at para 6.5.9.

[494] Same as above, at para 7.2.8.

[495] Saskatchewan Law Reform Commission, Proposals on Custody, Parental Guardianship and the Civil Rights of Minors (December 1981), at 17.

[496] HKLRC (1998), above, at paras 12.45 to 12.46 and 15.91 to 15.92.

[497] HKLRC (1998), above, at paras 12.10 to 12.11 and 15.83 to 15.84.

[498] Including new terms for relevant court orders which are now commonly used overseas, such as "residence", "contact", "specific issues" and "prohibited steps".

[499] HKLRC (1998), above, at paras 12.14 and 15.85.

[500] It was also noted by one of the respondents that the court should have the same power to order a report from an independent expert under matrimonial ordinances as was currently afforded under section 45A of the Protection of Children and Juveniles Ordinance (Cap 213).

[501] Hong Kong Judiciary Annual Report 2001, at 57. For the year 2000, there were also 20,646 divorce cases brought forward from previous years, 12,237 divorce cases disposed of and 1,662 "inactive" cases.

[502] “Divorce privacy to be respected,” Eastern Express (26 Dec 1995).

[503] HKLRC (1998), above, at paras 12.19 and 15.86.

[504] Order 90 rule 4B of the Rules of the High Court (Cap 4, subsid leg) provides that an application to make a minor a ward of court may be disposed of in chambers. Rule 7 makes similar provision for guardianship cases. Certainly the practice is to consider disputes concerning children in chambers.

[505] This is because the decision of the judge has to meet the best interests of that particular child.

[506] Report of the Working Party on Civil Proceedings conducted in private (Mar 1997).

[507] Same as above, at para 5.8.

[508] Pursuant to Order 63, rule 4(1)(a) of the Rules of the High Court (Cap 4, subsid leg), 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.

[509] This, and similar incidents, prompted the Commission to note in its recent report on international parental child abduction that it might be necessary to introduce specific legislative provisions to prohibit the publication of information relating to parental child abduction cases, and also to prohibit the searching and inspection of the court file in these proceedings by members of the public: see HKLRC, International Parental Child Abduction (Apr 2002), at para 7.16.

[510] HKLRC (Dec 1998), above, at paras 12.30 and 15.87.

[511] Stephen Peaker, “The Hong Kong Family Law Association Code of Conduct,” Hong Kong Lawyer (Nov 1998), 46-49, at 48. See also Thomas Mulvey, “The HKFLA Code of Conduct,” Hong Kong Lawyer (Feb 1999), 4-5, at 4.

[512] Then chair of HKFLA, Sharon Ser, quoted in Peaker (1998), above, at 46.

[513] Peaker (1998), above, at 48.

[514] HKFLA Code of Conduct for family lawyers, section 2.

[515] Same as above, section 3.

[516] Same as above, section 4.

[517] Same as above, section 5.

[518] Same as above, section 6.

[519] Mulvey (1999), above, at 4.

[520] Family Law (Apr 1994), vol 215.

[521] Peaker (1998), above, at 46.

[522] Same as above.

[523] Mulvey (1999), above, at 5.

[524] Solicitors Family Law Association, Guide to Good Practice for Solicitors Acting for Children (now 6th ed, 2002).

[525] Same as above, at Foreword.

[526] HKLRC (Dec 1998), above, at paras 12.34 and 15.88.

[527] In this context, we understand that in the past, the Family Law Committee of the Law Society has been of the view that there should not be formal sanctions available for enforcement of the HKFLA Code.

[528] As represented in the membership of the HKFLA.

[529] Peaker (1998), above, at 48.