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THE LAW REFORM COMMISSION OF HONG KONG - page 102 / 360

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3.137Dame Margaret Justice Booth had the following views:

“In some cases it may not be ... in the child’s best interests for him to see all the documents or hear all the evidence - but if he is a party can he be stopped from seeing relevant material or excluded from court? ... Can the adversarial system ... cope with this direct intervention of the child or will it have to give way to a more inquisitorial form of hearing?  And if a child can instruct a solicitor directly in family proceedings, why not in other litigation in which he is involved?”468

Enforcement of section 8 orders469

3.138Under the Magistrates’ Courts Act 1980, section 8 orders made by a magistrates’ court can be enforced by fining persons in default or committing them to prison until the default is remedied or for a period not exceeding two months.470  The court may act on its own motion or by complaint.471

3.139In the county court and the High Court, breach of an order may be punished as contempt of court.  The contemnor may be imprisoned for up to two years for breach of a High Court order, his property may be sequestered or he may be fined.472  It is a requirement that a penal notice473 must have been attached to the order in question.474  It must be proved beyond reasonable doubt that the defendant broke the order knowingly.475

3.140Where a person is required by a section 8 order to give up a child to another person and the court that made the order is satisfied that the child has not been given up, it may make an order authorising an officer of the court to enter premises (with force if necessary), search for the child, take charge of him and deliver him to that other person.476

3.141Enforcement powers should be regarded as remedies of the last resort.  Cretney and Masson observed that:

468 Dame Margaret Justice Booth, “The Children Act 1989 - the Proof of the Pudding”, Statute Law Review, vol. 16, No 1, (1995), at 17-8.

469 See generally, Lowe 4 Journal of Child Law 26, (1992).

470 Children Act 1989, section 14 and Magistrates’ Courts Act 1980, s 63(3).  Section 14 of the Children Act 1989 mentioned only residence orders but section 63(3) of the Magistrates’ Courts Act 1980 should apply to other section 8 orders because these were orders “to do anything other than the payment of money or to abstain from doing anything”: P v W [1984] Fam Law 32.

471 Contempt of Court Act 1981, section 17, schedule 3.

472 Contempt of Court Act 1981, section 14.

473 That is a notice warning the person against whom the order is made that disobedience to the order constitutes a contempt of court which is punishable by imprisonment.

474 Rules of the Supreme Court, Order 45 r 7(4); County Courts Rules, Order 29, r 1(3) as amended by the Family Proceedings Rules 1991, r 4.21A.

475 For procedure, see Rules of the Supreme Court, Order 45 r 5 and Order 52; County Courts Rules 1981 Order 29 r 1.  The court may sit in private where the application for an order for committal arises out of proceedings relating to wardship or wholly or mainly to the guardianship, custody or upbringing of an infant, or rights of access to an infant:  RSC Order 52 r 6.

476 Family Law Act 1986, section 34 as amended by Children Act 1989, schedule 13, paragraphs 62 and 70.

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