2016 02 26 cpd on family law printing

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The Children's Bill, Expert Evidence and

Enforcement

26 February 2016

Azan MarwahShaphan Marwah

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The Game Plan

1. The Children’s Bill

2. Expert Evidence

3. Enforcement

Topic 1The Children’s Bill

aka the “Children Proceedings (Parental Responsibility) Bill”

Part 1: History of the BillPart 2: Structure of the BillPart 3: Headline Reforms

Part 4: New Language & OrdersPart 5: Representation & Views of

ChildrenPart 6: Contact Centers

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History of the Bill

Emphasis on Marriage over Parenthood

Natural GuardiansFilius Nullius

Guardianship & Custody

SEXIST and OUTDATED LAWS

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History of the Bill

Presumed legislative intent:Ubamaka v Secretary for Security

(2012) 15 HKCFAR 743, 763 at §43, per Ribeiro PJ

Development of common law:Re P [1999] 3 All ER 734 (CA)

Impetus for Reform – International Obligations

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History of the Bill

ICCPR and HK Bill of Rights (Cap 383)

Protection for the family, equal rights for parents, child protection in divorce and marital breakdown

(Articles 19 and 20, HKBOR)

History of the BillBill of Rights, Article 19:Rights in respect of marriage and family

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2) …

(3) …

(4) Spouses shall have equal rights and responsibilities as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

History of the Bill

Bill of Rights, Article 20:Rights of children

(1)Every child shall have … the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

(2)…

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History of the Bill

UN Convention on the Rights of the Child

i. Child welfare paramount in upbringing – over the rights of parents (Article 3)

ii. Emphasis on parental responsibility as basis for guardianship (Article 18)

iii. Presumption in favour of enduring relationship of child with both parents

(Article 9(3)) iv. Right of child to be heard (Article 12)

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History of the Bill

“Child Custody and Access” (March 2005)

• Reform of guardianship and custody law

Law Reform Commission Report

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History of the Bill

Concluding Observations (September 2005) §§37-41

“remains concerned that children’s views are not sought

systematically”

UNCRC Report

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History of the Bill

2011-2012Government launched public consultation on “Child Custody

and Access: Whether to Implement the "Joint Parental

Responsibility Model" by Legislative Means”

‘Green Paper’ Consultation

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History of the Bill

Current consultation ends 25 March 2016

Includes Draft Bill

‘White Paper’ Consultation

http://www.lwb.gov.hk/parentalresponsibility_consult/index_e.html



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Structure of the Bill

“Reform and consolidate the law relating to responsibilities and rights of parents for children,

particularly in relation to proceedings involving children; to provide for the appointment and

powers of guardians; and to make related and consequential

amendments.”

What is the Bill?

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Structure of the Bill

UK Children Act 1989Replace the Guardianship of Minors

Ordinance (Cap 13)Amend other Ordinances

Structure

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Headline Reforms• Parental Responsibility Model

• New range of child-related orders• Update and clarify law• Unmarried fathers

• ‘Grandparent’ applications c.f. CLP v CSN [2016] 1 HKLRD 272• Applications by children

• Care and Supervision Orders

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New Language & Orders

• Access = Contact • Care and Control = Residence

• Guardianship, Custody = Parental Responsibility

• Welfare Checklist (now statutory)• Some remain the same:

Maintenance, Removal, ‘Guardian’

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New Orders

who will the child live, spend time or otherwise have contact with

Child Arrangements Order cl 28(1)(a)

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New Orders

prohibit the exercise of certain aspects of parental responsibility

(e.g. non-removal from jurisdiction)

Prohibited Steps Order cl 28(1)(b)

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New Orders

determine specific questions relating to matters other than

residence, contact or maintenance

(e.g. schooling, extra-curricular activities)

Specific Issues Order cl 28(1)(c)

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New Orders

Matrimonial proceedings – ‘no order’ by consent with leave of court

“No Order” Order cl 28(3)

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New Orders

Deprive parent/guardian of part or all of parental responsibility

Deprivation Order cl 28(1)(d)

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New Orders

Replace provisions in GMO (s 13) and MCO (Part VII)

New grounds same as PCJO (Cap 213) (s 34)

Provide ‘right of access’ (cl 57)

Care & Supervision Orderscl 51

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Views & Representation of Children

• How views expressed (cl 60)• No requirement to express views (cl 61)• Independent representation (cl 62)• Direct representation*** (cl 63)

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Child Contact Centers

Typically used:• contact is being resumed after a break, and concerns are raised• Allegations of domestic violence, abuse• parental alienation or implacable hostility• necessary in best interests

Safe, neutral, child-focussed venues for supervised access, visits and

changeovers

Topic 2Expert Evidence

Instructing an Expert

• Relevance • In proportionate to the issues• Expertise/experience in court

• Anonymised preliminary enquiries (PD 15.12)

• Permission to instruct! (PD 15.12/O.38 r.6)

Contents• Qualifications

• Facts, assumptions, and instructions• Reasons for opinions

• Issues outside expertise • Literature/other materials• Other investigations• Statement of truth• Duty to court

• Code of conduct

Privilege

Duty to disclose background material

• Communications• Documents• Instructions

Meeting of Experts

Without prejudice meeting (O.38 r.38)• Narrow the issues• Joint statement

Experts in Ancillary Relief

Valuations• Privately owned companies

• Commodities (e.g. cars, antiques, gems…)• Properties

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Multiple Experts

Multiple experts (usually 2), give evidence simultaneously

See A Local Authority v A (No 2) [2011] 2 FLR 162, per Ryder J at

§§22, 23

“Hot-tubbing”

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Single Joint Experts

O 38 r 4A (Court is tie breaker)Cannot instruct expert without

considering Single Joint Expert (PD 5.2, para 20)

Will have to explain to the Court (PD 15.11 at §5 and FDR)

(PD 15.13 at §13 and CDR)

MUST CONSIDER SJE

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[2003] 1 FLR 573 (Red Book, pp 1500-1502)

Ancillary Relief: ProportionalityChildren: Best Interests

Best Practice Guide

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- Vetting Expert- Instructions come from Court

- Letter of instruction (joint)- Conferences (joint)

Reports and Evidence

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Children’s Experts

- SIRs- ISIRs- CPs

- Other specialists (medical, developmental, etc)

What are they?

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- Issued by or through the assistance of the SWD

- Relevant consideration for Best Interests (GMO s 3)

- “Eyes and ears of the Court”

SIRs and ISIRs

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- Not infallible / no special weight- Must not become “too involved”

with a party so as to create appearance of bias ([1987] 1 FLR

418 at 419)- No duty to give reasons for

departure

SIRs and ISIRs

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- Important step requires leave

- Children proceedings are confidential requires leave

- Avoid appearance of bias / over involvement with party

CPs and Other Specialists

EnforcementPart 1: General Issues

Part 2: Judgment SummonsesPart 3: Other Orders

Part 4: Foreign Judgments

Part 1General Issues

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Plan Ahead!• Settlements

• Security for costs• Injunctions

What can I enforce against?• Property• Person• Income

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Time Limits• Judgment debts = 12 years• Arrears on judgment interest = 6 years

• s.4(4) Limitation Ordinance (Cap.347)• Re Li Man Hoo [2013] 4 HKLRD 247 (CA)• (cf. Lowsley v Forbes [1999] 1 AC 329 (HL))

• Leave to claim arrears >12 months• s.12(1) MPPO (Cap.192)• (Perhaps not for foreign judgments, see: CY v

PYKC [2005] HKCU 1819) (DC))

Special Circumstances

• Burden on judgment creditor• L v C (FCMC 11799/1996, unrep., 8 November

2012, DC)

• Irregular or reluctant payer: not special enough• CSL v WWK [2004] HKCU 226 (CA)

• Unable to obtain legal advice? • Arif v Anwar [2014] EWHC 4669 (Fam)

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Undertakings• Wider than court orders!• Harris v Harris [2001] Fam 502 (HC)*

• If possible in writing and signed by promisor

• S/he understands the terms• S/he understands the consequences

• Discretion to revoke or modify at any time

• Hudson v Hudson [1966] 2 WLR 398 (HC)

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Execution of Documents

• Secured payments / transfer or sale of property -> Registrar of the High Court

• (s.26(a) MPPO)

• Apply to the right court!• Wasted costs: Lai Yin Fun v Wong Fai

Kun (HCMP 7967/1999, unrep., 28 Nov. 2000)

• s. 25A HCO, s.38A DCO

Stays of Execution• Appeals to the Court of Appeal (O.59 r.13 RHC)• Will the appeal be rendered nugatory?

• Matters occurring after judgment (O.45 r.11)• ‘going to the validity of the judgment’

• Inherent jurisdiction • Abuse of process

• Fieri facias (O.47 r.1)• Special circumstances render enforcement inexpedient• Unable to pay

Part 2Judgment Summons

Beware!

• Oral examination + process of committal• Likely ‘penal’ proceedings for HKBOR

Arts.10 & 11• Engels v Netherlands (No 1) (1976) 1 EHRR

647• Mubarak v Mubarak [2001] 1 FLR 693 (CA)

• Last resort in family proceedings

CJ’s Working Party on FPR

197. The Working Party is concerned about the constitutionality of our provisions

regarding judgment summons for the reason that previous similar English provisions were

held in contravention of the European Convention on Human Rights. We considered

that there is a real risk that our provisions might be held inconsistent with the Hong

Kong Bill of Rights.

Fair Trial• Presumption of innocence

(proof beyond reasonable doubt)

• Nature and cause of the charges

• Time and facilities to prepare

• Tried without undue delay• Tried in his/her presence

• Legal assistance• Examine witnesses• Free assistance of an

interpreter• Privilege against self-

incrimination (includes documents)

• Open court…

HKBOR Compliance

• Concise summary of the case• Oral evidence and witnesses• Documents relied upon

• Expert evidence• Privilege against self-incrimination

• Cannot rely on findings made at the civil standard

Methods

• O.48

• (MCO/MPPO: rr. 87-88 MCR)• (GMO/SMOO/MO(RE)O: O.90A)

• O.49B

O.48 Pros

• Available for non-money orders (O.48 r.2)

• Officers of corporate bodies (O.48 r.1(1))

• Suspended sentences (MCR r.87(6))

O.48 Process• Ex parte affidavit (MCR r.86(1))• Amount and calculation• Exhibit order

• Form 22 Praecipe (MCR r.87(3))• Form 23 Judgment Summons (with penal notice)• Personal service (10 clear days) + travel expenses• Directions hearing• (Committal for non-attendance!)

(1) Imprisonment• MCR r.85(c): ‘fails to show cause’• “whether he had the ability to make the

payments ordered and whether he has wilfully failed to do so” (BT v YHK (FCMC 943/2011, unrep., 29 May 2015))

• ‘in family cases it should be the very last resort…’• ‘shown contumelious disregard…’• 3 months maximum (s.21A HCO / s.52D DCO)

(2) Payment by installments

• MCR r.87(5)(a): “make a new order for payment of the amount due under the original order” (i.e. not variation)

• No surcharge/interest for MPS!• KJ v KMLM (HCMC 4/2010, unrep., 21 May 2014)

(3) No order

• X v Y (FCMC 536/1997, unrep., 21 June 2002):

“The maximum he can afford is a small surplus from his income of about $6,000 per month. One does not need to be a mathematician to work out that including accruing interest, this would take more or less 100 years. It is not a practical solution."

O.49B Pros

• Power of arrest (by bailiff)

• Prohibition order

• Imprisonment during adjournment

(1) Imprisonment

• O.49B r.1B(1):(a) is able to satisfy the judgment…(b) has disposed of assets with a view to avoiding satisfaction of the judgment…(c) has wilfully failed to make a full disclosure (?)

(2) Instalments

• O.49B r.1B(2)(a): “it may order him to satisfy the judgment in such manner as it thinks fit.”

• Debtor may then apply to discharge/vary/suspend

Application to Vary

• Hear first (in chambers)• Stand down to reconsider• C (Formerly known as C) v H [2012] 3

HKLRD 351

Part 3Writs of Execution

Writs of Execution

• Fieri facias• Sequestration• Possession• Delivery• Writs in aid

Writs of Execution

• Fieri facias (seize and sell property)• Sequestration (detain property)• Possession• Delivery• Writs in aid

Fieri Facias• Obtain leave? • MCR r.86(2) / O.46 r.2

• File signed praecipe and copy of the order, pay fee• Register writ against land in Land Registry (priority)• Property that can be sold• s.68B DCO/s.21D HCO: land, goods, money, etc…• NOT: shares in private company / tools of trade /

necessary tools, apparel and bedding up to $10,000

Sequestration

• Enforce mandatory & prohibitory orders• Personal service of the order, penal notice

(O.45 r.7)• Obtain leave! (O.46 r.5)• Draconian • Prove deliberate disobedience (at criminal

standard)

• Commissioners

Part 4Other Orders

Prohibition Order• Preventing judgment debtor leaving Hong Kong • (s.21B HCO, s.52E DCO)

• Before or after default, or proceedings• Probable cause debtor will leave thereby obstruct

performance

• Generally ex parte by affidavit• Serve sealed copy of order on Director of

Immigration, Commissioner of Police, and debtor (O.44A r.6)

Charging Order

• Over: land/certain securities/funds in court/in trust

• Register in the Land Registry!• Ex parte with affidavit, for order to show

cause at inter partes hearing (O.50 r.1)

Garnishee Order• Solely and beneficially owned debts of third parties

in the jurisdiction (O.49 r.1(1))• Includes bank deposits (s.21 HCO & s.52C DCO)• Not contingent liabilities(O.49 r.2)• Service (debtor and garnishee)• Ex parte with affidavit, for order to show cause at

inter partes hearing• Can be enforced against the garnishee as a final

order for payment (O.49 r.4(2))

Attachment of Income• Divert debtor’s wages:• Periodical payments/lump sums: s.28 MPPO, s.9A SMOO,

s.20 GMO• Not MPS!

• There is income and, either:• Has failed to pay, or• Reasonable grounds to believe

• Applies to civil servant’s wages• Summons with supporting affidavit• Criminal offence!

Bankruptcy• Priority? (s.41 BO, Cap.6)• Earning capacity?• Maintenance not a provable debt• Re Lo Man Hong [2013] 4 HKLRD 126 (CFI)

• Lump sum by installments?• CH v MEH [2012] 1 HKLRD 751 (CA)

• Set aside as an abuse?• Re Li Kam Kwan (HCB 749/2005, unrep., 21

September 2006, CFI)

Committal

Any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the courts

• Contumacious = not casual or accidental• Beyond reasonable doubt• Last resort in family proceedings!

Procedure• RHC applies (MCR r.3)• Leave (O.52 r.2)• Originating summons with statement and affidavit

(O.52 r.3(1))• Service• Open court • Sentencing (no maximum)• Application to discharge (O.52 r.8(1))

Hadkinson Orders

• Refuse to hear submissions• Hadkinson v Hadkinson [1952] 2 All ER 567

• Never on a committal application• Prove contempt (to the civil standard)

Part 4Foreign Orders

Options

• Common law• Mainland Judgments (Reciprocal

Enforcement) Ordinance, Cap.597• Foreign Judgments (Reciprocal Enforcement)

Ordinance, Cap.319• Maintenance Orders (Reciprocal

Enforcement) Ordinance, Cap.188

At Common Law

• In personam• Definite sum

• Final judgment (maintenance?)• Defendant resident in/submitted to foreign

jurisdiction (see s.4 FJ(RRE)O, Cap. 46)

MO(RE)O

• Reciprocating countries• Provisional Order or Maintenance Order?

• Register/confirm• Enforcement by Registrar (MO(RE)R r.8(2))

• Vary/remit

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Contact Information

Azan Marwah

[email protected]

Barrister, Gilt Chambers

Shaphan Marwah

[email protected]

Barrister, Baskerville Chambers

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