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THE LAW REFORM COMMISSION OF HONG KONG - page 204 / 360

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welfare officers.

Children Act 1989 Practice Direction

8.5 To reflect the changes of the Children Act 1989, a new Practice Direction was issued in 1992.  This provided that a district judge at any time while considering arrangements for children could direct a conciliation appointment.  Applications for residence or contact orders under section 8 would be compulsorily referred for an appointment.847  An application for a prohibited steps or specific issue order would be referred only if the applicant requests it.  A summons for wardship where orders under section 8 are sought, may be referred for a conciliation appointment.

8.6The district judge rather than the registrar attends with the parties and legal advisers.  The parties alone attend before the welfare officer if the dispute is not settled at the initial meeting before the district judge and welfare officer.  If the conciliation is unsuccessful, the Practice Direction provides that:

“the district judge will give directions (including timetabling) with a view to the early hearing and also disposal of the application.  In such cases the district judge and court welfare officer will not be further involved in that application.”848

8.7If the conciliation appointment has been concluded then the district judge who had been considering the arrangements for the children will issue a certificate that the court has complied with section 41 of the Matrimonial Causes Act 1973.  Provision is also made that urgent applications will be referred to the district judge of the day to decide whether the parties are to be referred to conciliation.

Special procedure

8.8The special procedure system, under which undefended divorces were granted without the parties’ attending, applied to the vast majority of divorce petitions.  A children’s appointment system was also introduced so that the children’s upbringing could be fully investigated.849  Then, in a schedule to the Children Act 1989, the children’s appointment provision was abolished.850  Now the arrangements for the children are examined in private “and almost invariably in the absence of the parties or their representatives by a district judge whose role is greatly circumscribed”.851

Value of mediation

847 See chapter 3.

848 Practice Direction (Family Division: Conciliation), [1992] 1 WLR 147.

849 Matrimonial Causes Rules 1977, SI 1977/ 334, rules 33(3) and 48.

850 Schedule 12, paragraph 31.

851 Cretney, “Family Law - a bit of a racket”, NLJ Practitioner, January 26 1996, 91, 93.

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