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THE LAW REFORM COMMISSION OF HONG KONG - page 104 / 360

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Moreover, a frequent consequence is that the case of the parent who is not living with the child is severely prejudiced by the time of the hearing.  Regrettably, it is almost always to the advantage of one of the parties to delay the proceedings ... and ... to make difficulties over contact in the meantime.”482

Jurisdiction

3.145The Children Act 1989 created a new jurisdictional structure to deal with children cases, “under which, for the first time, all proceedings relating to the same child can be heard together in the same court, and the same rules will apply in all courts and all proceedings (apart from wardship, which will, however, be largely restricted to the private law field).”483

3.146A concurrent jurisdiction for the High Court, the County Court and the Magistrates Family Proceedings Court to hear all children proceedings is created by section 92(7) which provides that, for the purposes of the Act, wherever reference is made to “the court” what is meant is “the High Court, a county court or a magistrates’ court”.  The broad objective was “to achieve, as far as possible, uniformity of orders, flexibility and consistency in the procedure and remedies applying in different levels of court”.484

Allocation of proceedings

Commencement

3.147The objective of speedy and efficient case management is implemented by the new “start” and “transfer” provisions.  Under Schedule 11, paragraph 1(1) and (2), the Lord Chancellor is empowered to make orders regulating the level of court or the description of court within a tier in which proceedings under the 1989 Act may be started.

3.148Article 3 of the Children (Allocation of Proceedings) Order 1991 provides that certain “specified proceedings”, that is those concerning local authorities must be started in the magistrates’ court.  These are the only proceedings where the 1991 Order regulates the court level at which proceedings must be started.  However, the vast majority of proceedings under the 1989 Act are “self-allocating” as the largest percentage of cases will be originated in divorce proceedings which must be made to the divorce county court.  “There is no formal regulation on the initial court allocation of free standing applications for section 8 orders or orders under Part 1 of the 1989 Act”.485

Transfer

482 Law Com No 172, paragraph 4.55.  Delay reinforces the status quo and makes it difficult to argue for a change.

483 Scott, “Problems in Court Structures and Processes”, 44 CLP 15, 24-5 (1993).

484 Bainham, Children: The Modern Law, at 68-9.

485 Idem

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