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THE LAW REFORM COMMISSION OF HONG KONG - page 105 / 360

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3.149Rules of court control the allocation of cases between the different courts and facilitate the vertical and lateral transfer of proceedings or parts of proceedings either between tiers of courts or between courts within the same tier.486  Proceedings can be transferred sideways, that is, for example, from one magistrates’ court to another.

3.150The Children (Allocation of Proceedings) Order 1991 defines the criteria which may lead to transfer:

“If the case is exceptionally grave, important or complex; if the case should link to other family proceedings in the other court already; if the transfer is likely significantly to accelerate the determination of the proceedings in particular circumstances including where delay would seriously prejudice the interests of the child”.

3.151The Lord Chancellor has the power under Schedule 11, paragraph 2, to order that in specified circumstances the whole or part of specified proceedings may be transferred to another court (whether or not at the same level).  Proceedings may be  transferred at any stage.  It is intended that children’s cases in the higher courts should be heard by members of the judiciary who, by reason of their experience and training, are specialists in family work.  

3.152The Lord Chancellor has power, with the concurrence of the President of the Family Division, to make directions (1) allocating particular types of family proceedings to a particular level (or order) of judge, and (2) allocating a particular type of proceedings to a specific individual judge.  “The intention is to create a nominated group of Circuit and District judges (formerly county court registrars) who will specialise in specific types of family proceedings and to whom, by direction, particular cases may be assigned.”487

Privacy  

3.153The Children Act 1989 provides that rules may be made under the Magistrates’ Courts Act 1980 to provide for cases to be heard in private when exercising any of its powers under the 1989 Act.488  It does not, however, make any provisions for the higher courts to sit in private.  White, Carr and Lowe expected that the practice of the High Court to deal with  applications in chambers under the Rules of the Supreme Court would continue when hearing applications under the 1989 Act.489

Publicity

486 Section 92(6) and Schedule 11 paragraphs 1, 2.  Transfers are governed by the Children (Allocation of Proceedings) Order 1991.  Before ordering a transfer, the transferring court must consider that it is in the best interests of the child because the receiving court is likely to accelerate the hearing, or because it is appropriate for the proceedings to be heard with other proceedings pending in the receiving court or “for some other reason”.  Dame Margaret Justice Booth,  op cit at 18-19.

487 Scott, “Problems in Court Structures and Processes”, 44 CLP 15, at 25 (1993).

488 Section 97(1).

489 White, Carr & Lowe, op cit at  paragraph 9.24.  See Rules of the Supreme Court, Order 90, rule 7.

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