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THE LAW REFORM COMMISSION OF HONG KONG - page 61 / 360

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English decision, Jennison v Baker,206 which was based on a similar provision.  Thus, it would seem that the District Court does have power to commit to prison for breaches of guardianship, custody and access orders.  Order 52 rule 6 of the Rules of the High Court provides for applications for committal in guardianship, custody or access to be dealt with in private.

Enforcement of court orders overseas

2.153A difficulty arises in that Hong Kong has provisions for the reciprocal enforcement of civil judgements with only seven non-Commonwealth countries.  Mainland China and the United States are not included.

Enforcement of mediation agreements

2.154Mediation is increasingly being used as an alternative way of resolving custody and access disputes when parties divorce, or when arrangements may need to be varied after the divorce as the children grow older.207  Mediation is not legally binding unless the terms are incorporated into an agreement, which can be treated as binding provided there was independent legal advice and no pressure exerted by one party on the other.  The memorandum of agreement should be clear as to whether it is binding on the parties or not, to avoid any subsequent dispute on this issue.208  Also, the agreement to mediate may have provided that any agreement reached in mediation would not be binding unless reduced to writing and signed by the parties.  In some agreements there may be a provision that the parties should obtain independent legal advice, and thereafter agree to be bound.209  In addition the mediation agreement can be incorporated into a court order by consent.  It is useful if an agreement contains a clause setting out a procedure for enforcement if one of the parties were to default in complying with the agreement or order.

2.155However, any arrangements made by the parties for children cannot be treated as legally binding without the court’s approval under section 18 of the Matrimonial Property and Proceedings Ordinance (Cap 192).  In reality, the court is unlikely to interfere with an agreement by the parties unless it appears to be against the welfare of the child.  In particular, the court would regard any custody or access arrangements, whether contained in a mediation agreement, consent order, or other order, as being capable of variation if the interests of the child required it.

2.156If there are future disagreements about interpretation of the consent order, the court will resist setting aside an agreement reached freely by the parties.  The parties cannot appeal the consent order but must apply to set it aside on the ground of variation of circumstances or duress or fraud.  Godfrey J, in the Court of

206 [1972] 1 All ER 997.

207 Report and Recommendations of The Chief Justice’s Committee on The Desirability of Introducing a Court Annexed Mediation Scheme in Hong Kong and related matters, August 1993.  Paragraphs 2.156-166 were substantially taken from an unpublished dissertation by Paula Scully, Obstacles to Referral, Planning and Implementation of Family Mediation as a Dispute Resolution Process in Hong Kong; Reflections based on Foreign Systems, April 1996.

208 Brown and Marriott, ADR Principles and Practice, (1993), 378.

209 The English Family Mediators Association agreement is similar to this provision.

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