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THE LAW REFORM COMMISSION OF HONG KONG - page 103 / 360

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“In practice, the courts appear reluctant to use their enforcement powers except to ensure that children are returned to their residential carer....  Contact orders pose even more severe enforcement problems; a residential parent who refuses to permit contact may be imprisoned but this will rarely be in the interests of the children....  Before enforcing contact the court may attempt to make it more acceptable by defining or reducing it....  The court may make a family assistance order in the hope that a welfare officer can produce an acceptable arrangement and may even threaten a change in the child’s residence.”477

Delay

3.142The 1989 Act provides that “[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”.478  In proceedings in which any question of making a section 8 order arises, the court is required to draw up a timetable with a view to determining the question before it without delay and to give such directions as it considers appropriate for the purpose of ensuring that the timetable is adhered to.479  The court is under an obligation to oversee the progress of the case and to presume that all delay is prejudicial to the child’s interests unless the contrary is shown.  There are occasions where delay might be beneficial to the child’s welfare, as when the benefit derived from a thorough welfare report outweighs the adverse effects of delay in obtaining it.

3.143The procedure for drawing up the timetable which specifies the periods within which the various steps must be taken is governed by the rules of court.480  Under the rules, a definite return date must be fixed before the end of any hearing of the case until the application is finally disposed of.  Once the time has been fixed it cannot be extended except by leave of the court.481

Rationale for timetable

3.144The English Law Commission explained the need for a timetable as follows:

“Prolonged litigation about their future is deeply damaging to children, not only because of the uncertainty it brings for them, but also because of the harm it does to the relationship between the parents and their capacity to co-operate with one another in the future.  

477 Cretney & Masson, op cit at  580-581.

478 Section 1(2).

479 Section 11(1).

480 That is the Family Proceedings Rules 1991 which govern proceedings in the High Court and county court, and the Family Proceedings Courts (Children Act 1989) Rules 1991 which govern proceedings in the magistrates’ courts.

481 See also Practice Direction of 22 November 1993 on the duty of parties to give time estimates for the hearing of proceedings relating to children, [1994] 1 All ER 155.

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