Options for Reform of the Dispute Resolution Process
for Guardianship and Custody in Hong Kong
12.1Developments in Australia and England have transformed the way children’s cases are dealt with by the use of alternative dispute resolution. We set out the reforms required in the substantive law in chapter 6. Changing the substantive law to reflect a more modern approach to children’s best interests and rights is not enough. Such a change will have little impact unless it is supported by proper support services at the Family Court, a choice of dispute resolution methods and procedural processes that encourage people to choose alternatives to litigation. We now deal with the reforms to the existing dispute resolution process and make recommendations on alternative dispute resolution such as mediation and parenting plans.
Part A - The family dispute resolution process
12.2The choice for the resolution of child custody and guardianship disputes is between the traditional adversarial process (exemplified by the existing court-based approach adopted in Hong Kong) and the alternative dispute resolution process, most commonly associated with mediation. We have set out these different processes in chapter 7.
12.3There are delays in allocating a date for full hearing.1172 The performance standard is 90 days for the time taken from the issue of the petition to setting down for hearing in dissolution of marriage cases. No separate standard is set for the hearing of custody applications. The target for the divorce hearing is set by the Court Users’ Committee for the Civil Courts.1173
12.4The effect of delays caused by increasing pressure on court lists is that the status quo is maintained, to the detriment of the parent seeking change. Further delay can result from section 15 of the Legal Aid Ordinance (Cap 91), which provides for the stay of any proceedings pending an application for legal aid. We understand that the period of stay is a maximum of 42 days. This period is needed to investigate the means and merits of a legal aid application. Priority is given to emergency applications, but custody and access cases per se will not normally qualify for priority in a legal aid assessment unless there is some specific urgency in the matter. However, if legislation were to indicate that delay in such cases would be prejudicial to the best interests of the child, then more resources would need to be allocated to
1172 One solicitor informed us that it could take six months.
1173 “Judiciary - Serving the Community”, booklet (1996).