This Practice Direction came into effect on 3rd October 2012. It is a mandatory pilot scheme which will continue for a 3-year period or as directed by the Chief Justice. It will apply to all new children disputes (exception adoption) begun on or after this date.
See SKP v Y, ITT (Legal Terminology to be used in Child/ren’s Arrangements) FCMC 17772 / 2011
As a Practice Direction and in the absence of the urgently needed legislative reform, it adopts the successful Financial Dispute Resolution (FDR) Scheme structure and arrangements using a standard form – know as the ‘Children’s Form’ (Form J). Indeed parents are directed to read the Practice Direction in conjunction with Practice Direction 15.11. The objectives of the new scheme are clearly stated: ‘The underlying objective is to support mothers and fathers, so that they are able to effectively parent their children post separation or divorce. The intention is to ensure that whilst the best interests of children remains the court’s paramount concern, that lasting agreements concerning children are obtained quickly and in a less adversarial atmosphere. The focus is therefore on the children’s best interests together with the duties and responsibilities of their parents.’
The ‘Children’s Appointment’ is a preliminary appointment (essentially a directions hearing for the CDR) and will usually be heard at the same time as the ‘First Appointment’ under the FDR Practice Direction 15.11 or, in urgent cases, before that date. Thereafter, the CDR will probably take place before the FDR, ‘as it is generally accepted that it is clearer to the parties and to the court, what the liabilities and responsibilities of each parent will be financially, once the question of where the children are to reside and how much time each parent will have with the children, has been resolved.’
An Important Difference between FDR and CDR
As is set out at paragraphs 14-15 of Practice Direction 13, whilst the same Judge ‘will’ – (it seems unlikely this means ‘must’) conduct both the CDR hearing and the FDR hearing at separate hearings, unlike FDR, a CDR hearing is not privileged and so the same Judge may hear the child related matter at trial if settlement is not achieved before then. This is an important – and some would argue problematic – difference. At an FDR hearing the parties offers and counter offers of settlement are all on a ‘without prejudice’ basis. This means, in practice, that any trial judge would only be made aware of these ‘offers’ in relation to the issue of costs at the end of any trial.
In a CDR hearing all negotiations are deemed ‘open’ and this difference was thought appropriate where the ‘best interests’ of the child could not be considered ‘paramount’ if parents and their lawyers were afforded the legal privilege of hiding behind ‘without prejudice’ offers. In short anything said or any admission made in the course of the CDR hearing will be admissible as evidence should the matter go to trial which, in any event, may be the before the very same Judge.
The new ‘rules’ envisaged by Practice Direction 15.13 will be monitored as to their effectiveness in practice over the next 2-3 years and a report back to the Judiciary will be made. No doubt one of the central questions examined will be whether the absence of ‘without prejudice’ correspondence and ‘options’ for settlement are seen to help or hinder parents in reaching agreement as to custody, care and control and access arrangements. However, given that both the FDR and CDR hearings are meant to offer a relatively informal pre-trial ‘mediation’ process – albeit one which is ‘Judge assisted’ – it is at least arguable that the removal of ‘privilege’ from the Child Dispute Resolution process may (unlike private mediation) actively promote caution and obstinacy.
The problem with the ‘objective’ statutory child welfare test – see the recently amended section 3 Guardianship of Minors Ordinance (Cap 13) – of the ‘best interests of the child’ – is that whilst it is, justly, a mandatory direction to the courts and experts as well as (in theory at least) to parents – by the time the latter have opted for litigation, almost by definition, the ‘best interests’ of the child have hardened and become whatever that parent subjectively believes those ‘best interests’ to be – and too often indignantly and intransigently believes them to be – which is precisely why the parties are heading towards a trial of those ‘best interests’ in the first place. Thus, whilst a (now statutorily ‘privileged) private mediation or a ‘collaborative‘ procedure may be said to promote the objective of ‘open’ and exploratory discussion (as in FDR) the removal of privileged or ‘without prejudice’ negotiations from the CDR process may equally be said to encorage unnecessary caution both for the parent and especially legal advisors – who may not be quite so sanguine about laying all their cards on the table 14-days before the ‘Children’s Appointment’ and First Appointment.
Children’s Dispute Resolution Pilot Scheme
1. This practice direction is to be read in conjunction with Practice Direction 15.11 i.e. the Financial Dispute Resolution Pilot Scheme (“FDR”). It will apply to all children matters commenced in the Family Court, where there is a dispute save for any matters arising out of an adoption.
2. The process described in this Practice Direction will be mandatory in the Family Court. The court may of its own motion or on the application by one or either or both of the parties direct that it shall not apply.
3. The underlying objective is to support mothers and fathers, so that they are able to effectively parent their children post separation or divorce. The intention is to ensure that whilst the best interests of children remains the court’s paramount concern, that lasting agreements concerning children are obtained quickly and in a less adversarial atmosphere. The focus is therefore on the children’s best interests together with the duties and responsibilities of their parents.
4. Upon the filing of:
i) an Acknowledgment of Service form, a Form 4 or a Joint Application and where it is clear that there is a dispute over children; or
ii) a summons or an originating summons in relation to the arrangements for children;
the court may either direct that a Children’s Appointment (“CA”), be heard at the same time as the First Appointment under PD 15.11 or in the case of an urgent application allocate an earlier date in the first instance. Notice of a CA shall be by way of the notice annexed to this PD as Form I.
5. Save for any affirmation/affidavit filed in support of a summons, no further affirmations/affidavits shall be filed by either party without leave of the court.
6. The Applicant shall serve a copy of the Form I on the respondent.
7. 14 days prior to the CA, or otherwise as directed, each party shall file at court and simultaneously exchange:
i) the Children’s Form, annexed to this PD as Form J;
ii) a concise statement of issues relating to the children.
8. In the event that the CA is not heard at the same time as the First Appointment the parties shall also 14 days prior to the CA or otherwise as directed, deliver to court and simultaneously exchange
i) a brief chronology;
ii) a list of orders and directions sought.
9. No later than 4 p.m. on the last working day prior to the CA, each party shall exchange with each other and deliver to the court a cost estimate in relation to the children’s arrangements, in Form H, save where the CA is heard at the same time as the First Appointment and a cost estimate has already been filed for the hearing.
10. At the CA the Judge, with a view to defining the specific issues in dispute in relation to the children shall give directions, if necessary, for the filing of:
i) a Social Investigation Report (SIR) and/or an International SIR (with or without recommendations)
ii) other expert’s reports (e.g. psychologist’s reports)
iii) limited affirmations/affidavits from the parents (i.e. limited to the issues in dispute and only if necessary)
iv) limited affirmations/affidavits from other third parties.
The Judge may also
v) appoint the Official Solicitor/Guardian ad litem to separately represent the child and request a report if necessary.
vi) make orders in relation to custody and access, including interim orders and orders for supervision.
vii) adjourn any matters relating to the children for mediation, collaborative practice, negotiation or sine die.
viii) where he/she decides that a referral to a Children’s Dispute Resolution hearing (“CDR”) is not appropriate, direct and fix a date for a further directions hearing or trial.
ix) direct the attendance of the Social Welfare Officer or any other person at the hearing of the CDR if deemed appropriate.
x) direct that the parties attend counseling, a parenting education programme and/or direct any other form of third party intervention that may assist the parties.
xi) where a child has requested to see the Judge and/or a Judge deems it appropriate, direct that a judicial interview shall take place.
11. Not less than 14 days prior to the CDR, or otherwise as directed, the parties shall file and exchange a detailed Statement of Proposals relating to the future arrangements for the children.
The Children’s Dispute Resolution Hearing
12. The parties shall be notified of the CDR hearing by way of the notice annexed to this PD as Form K which shall be served by the applicant on all parties concerned.
13. The Judge will act in the role of a conciliator. The parties shall attend the CDR hearing. The attendance of any other persons, including the Social Welfare Officer, must be specifically directed by the Judge at the CA. The Judge may talk to the parties directly and not only through the parties’ lawyers.
14. The same Judge will conduct both the CDR hearing and the FDR hearing at separate hearings. As a CDR hearing is not privileged the same Judge may hear the child related matter at trial if settlement is not achieved in the meantime.
15. Therefore anything said or any admission made in the course of the CDR hearing shall be admissible as evidence in trial.
16. Parties attending the CDR hearing shall use their best endeavours to reach an agreement on all relevant matters pertaining to the children.
17. The CDR hearing may be adjourned from time to time. At its conclusion the court may make such orders as have been agreed or as it deems appropriate.
18. No later than 4 p.m. on the last working day prior to the CDR hearing, each party shall exchange with each other and deliver to the court a cost estimate in relation to the children’s arrangements, in Form H.
19. In the event that settlement is not achieved the court shall give directions for the future conduct of the proceedings, including where appropriate, the fixing of a Pre-trial Review or final hearing date before the same Judge.
20. The Judge may also direct inter alia that further evidence be filed, including updated affirmations/affidavits from the parents and/or third parties, updated reports from the Social Welfare Officers and updated reports/reports from other experts.
21. 14 days prior to the trial both parties shall file and exchange an updated and detailed Statement of Proposals relating to the future arrangements for the children.
22. Both parties shall personally attend all hearings unless the court otherwise directs.
23. No later than 4 p.m. on the last working day prior to the trial, each party shall exchange with each other and deliver to the court a cost estimate in relation to the children’s arrangements, in Form H.
24. This Practice Direction shall take effect on 3 October 2012. The Pilot Scheme shall be in effect for a three year period unless otherwise directed by the Chief Justice.
Application and Extent
25. The procedure under the Practice Direction will apply to all new disputes relating to children arising out of a Petition, Form 4, Joint Application, summons or originating summons filed on or after 3 October 2012.
Dated this 23rd day of July 2012.
Article from The Hong Kong Lawyer – Sweet & Maxwell
Putting more focus on children: the Children’s Dispute Resolution Pilot Scheme
Sharon Ser, Senior Regional Partner Asia, Withers
Philippa Hewitt, Professional Support Lawyer Asia, Withers
The Practice Direction was approved by the Chief Justice following the recommendations of a Working Group formed in April 2010 chaired by Mr Justice Hartmann to consider and make recommendations concerning the advancement of children’s interests in family proceedings. The Working Group comprised of members of the Judiciary, the Official Solicitors Office, Legal Aid, the Social Welfare Department, the Bar and the Law Society and, crucially, as so often in matters of legal reform, the Hong Kong Family Law Association.
Research was conducted by comparing what processes were available in other jurisdictions where there was a growing awareness of the importance of involving children, when appropriate, in the decision-making process that so affected them.
The Practice Direction is to be read in conjunction with Practice Direction 15.11, the Financial Dispute Resolution Pilot Scheme, with which practitioners of family law in Hong Kong will now be well familiar. The Children’s Dispute Resolution procedure is very similar, in that there is also a preliminary hearing, the “Children’s Appointment”, followed by the substantive hearing, the “Children’s Dispute Resolution hearing” (the “CDR”) and then the trial, should the CDR not be successful. In many instances, in practice, the first stage of the new process, the Children’s Appointment, will no doubt fall on the same date as the First Appointment to avoid multiple court appearances. Thereafter, however, the CDR will probably take place before the FDR, as it is generally accepted that it is clearer to the parties and to the court, what the liabilities and responsibilities of each parent will be financially, once the question of where the children are to reside and how much time each parent will have with the children, has been resolved.
The objective of the practice direction is clear:
“The underlying objective is to support mothers and fathers, so that they are able to effectively parent their children post separation or divorce. The intention is to ensure that whilst the welfare of children remains the court’s paramount concern, that lasting agreements concerning the children are obtained quickly and in a less adversarial atmosphere. The focus is on the best interests of the children as well as the duties and responsibilities of their parents.”
Under the new procedure, the court requires detailed information in respect of the children, their current arrangements and the proposed arrangements for their future. It puts the children firmly back into focus and enables the parties and the court to fulfill their obligations under the welfare principle contained in the newly-amended Section 3 of the Guardianship of Minor’s Ordinance (Cap 13) which states that “In relation to the custody or upbringing of a minor…in any proceedings before any court… the court…. shall regard the best interests of the minor as the first and paramount consideration, and shall take into account the child’s views”.
It goes some way to modernize the law in Hong Kong in respect of children with the emphasis on the duties and responsibilities of parents rather than the rights and authority of parents over their children, which is how the legislation currently reads. There has been significant debate over the past few years in Hong Kong as to whether the current legislature should be amended to be more in line with other common law jurisdictions. The debate began in 2005 with the Law Reform Commission’s report on Child Custody and Access. This recommended a change in terminology away from custody and access and towards an assumption of ongoing joint parental responsibility. The joint parental responsibility model recognizes that, even if a couple divorce, if they have children, they still have a joint responsibility towards their welfare. The report recommended adopting the clearer terminology of residence and contact, custody having some connotations of ownership and taking the parties away from the complications involved in advising a client whether to apply for joint or sole custody.
Many members of the legal profession supported the Law Reform Commission’s recommendations, but the results of a consultation paper dated December 2011 entitled “Child Custody and Access: Whether to Implement the “Joint Parental Responsibility Model” by Legislative means” led to a decision not to change the legislature. The debate was open to the public and major stakeholder including social workers and women’s groups and they expressed reservations on the basis that the new arrangements may be used by trouble making or hostile parents to obstruct and harass the other parent and that there was sufficient provision under the current law of joint custody to cater for parents who could co-operate with each other in the best interests of the children.
The consultation period ended on 30 April 2012. The general frustration felt by many in the legal profession as a result of the failure to implement the 2005 recommendations undoubtedly provided the impetus behind the Working Group and the new Practice Direction.
As with FDR, the procedure for CDR is designed to promote settlement between the parties and a faster resolution to the dispute and a less complicated and thus less emotionally draining and damaging process. The judge adopts the role of settlement facilitator. Unlike FDR, the judge who hears the CDR can take the matter on to trial if the CDR is not successful, as the procedure at CDR is not privileged ensuring that the best interests of a child are discussed openly and not subject to side bargaining that cannot be brought to the attention of the Judge.
A Notice of Children’s Appointment is issued by the court (Form I and the equivalent of Form C in FDR) notifying the parties of the date for the Children’s Appointment. This will notify the parties of their need to provide to the court and to the other side, within 14 days of the CDR, a Children’s Form in Form J and a concise statement of issues. If the Children’s Appointment is not to be heard at the same time as the First Appointment in the FDR procedure, a brief chronology and list of directions and orders sought should also be prepared and filed 14 days before the CDR.
The Children’s Form
Form J is the substantive form for the CDR and is called the Children’s Form. As with Form E in FDR, both parties must complete the form and exchange it and file it in good time (14 days under this procedure) before the Children’s Appointment and the parties must make full, frank and clear disclosure of all relevant information and circumstances and sign the statement of truth on the last page.
In addition to the usual details to be provided as to age, name and gender, it contains detailed information on the children’s current living arrangements, including where they sleep and who helps them with their homework, arrangements as to access and how and when the children communicate with both parties and third parties, what the children do when the parents are at work and what happens in the holidays. Details are also to be provided in respect of the children’s schooling, including travel arrangements and what happens after school and how the children’s schooling is currently dealt with and how it will be dealt with in future.
Finally, a section on future parenting arrangements provides the parties with the beginnings of a parenting plan and also encourages the parents to think about matters which they may not otherwise do, such as how they propose to maintain communication with the other parent, or their friends and other family members and who will care for the children if they themselves are not available.
The Children’s Appointment
At the Children’s Appointment, the judge will give directions as necessary for the further conduct of the CDR. This includes directions to provide for the filing of a social welfare report or other expert reports, the filing of limited affidavits by the parents or third parties; make final or interim orders for custody and access, adjourn the matter for mediation, collaborative practice or further negotiation; direct that the parents attend counseling or a parenting education programme and provide for the further conduct of the case, including fixing a date for the CDR or trial as the case may be.
The Children’s Appointment also gives an opportunity to the child to voice his views. The Judge can appoint separate representation for the child, by appointing a guardian ad litem, either the Official Solicitor or such other fit person, if appropriate. Guidance has been given on this topic by the Chief Justice in July 20121 to assist Judges and family practitioners as to when such separate representation would be appropriate. In addition, where a child has indicated that he would like to see the Judge, or if the Judge deems it appropriate, he can direct that a judicial interview shall take place. This is a very important development as, although Judges could have seen children in the past, there was a marked reluctance to do. The recognition that children have a voice and can be heard and to have that acknowledgement now written into the CDR process is an important step forward in enabling children the right to speak frankly to a Judge and have the Judge say to their parents how their children feel in a remarkably controlled environment.
2.Hong Kong is a signatory to the United Nations Convention on the Rights of the Child. Article 12 provides that a child’s views should be taken into account either directly or indirectly whether in person or through a representative. The new procedure therefore provides the Family Court with greater opportunities to hear the child in accordance with its obligations under domestic and international law.
The Children’s Dispute Resolution Hearing
Once a date has been given for the CDR, a Notice in Form K will be issued by the court. A detailed Statement of Proposals relating to the future arrangements for the children must be filed and simultaneously exchanged with the other side no later than 14 days prior to the CDR. Both parties must attend the CDR as well as the Social Welfare officer and other witnesses and experts if so directed at the Children’s Appointment. The Judge acts as a conciliator and can address the parties directly. The parties are expected to use their best endeavours to reach an agreement and the CDR may be adjourned from time to time to assist settlement negotiations. As with FDR, if settlement is not achieved at the CDR, the matter will proceed to trial in the usual way.
Summary and moving forward, the Children’s Ombudsman
The new procedure is to be welcomed as a genuine attempt by the Family Court in Hong Kong to bring a more conciliatory approach to dispute resolution in cases relating to children. It is without a doubt in the best interests of children to ensure that the separation of their parents has the minimum impact on them.
Minimising the impact can be achieved in a number of ways. For example the Children’s Form encourages the parents to think deeply about the arrangements for their children, both current and in the future and prepares them for the desired end result – a parenting plan which both parties and the children can live by in the future with the minimum of upset and frustration.
The less formal approach in court may encourage the parents to communicate better with each other for the future benefit of their children and the mediation based environment should discourage the parties from taking “positions” which they may normally do in traditional litigation. By discussing the options available, the parties can see that solutions can be worked out for the benefit of their children with an understanding of the terminology, often so damaging to settlement, of the tricky labels of custody and access.
By shortening the time with which the matter comes to court, which hopefully will happen on this strict timetable, disputes concerning children will not run into months and years, creating uncertainty and long term damage to the child. Finally, hearing the voice of the child has, at last, found a place in Hong Kong family law procedure which leads to the drive for the next innovation in Hong Kong, the long awaited and much discussed Children’s Ombudsman. Now Hong Kong has recognized children’s rights with this new Practice Direction one feels the Government should feel some sense of obligation to ensure there is a formal champion to advise children and assist in the enforcement of such rights.
1. Guidance on Separate Representation for Children in Matrimonial and Family Proceedings 23rd July 2012
2. Recently the Chief Justice has provided guidance on when this may be appropriate in March 2012 ‘Guidance on Meeting Children’ 28th March 2012