2.173If the matter settles after the submission of the social welfare officer’s report, then an order can be made by consent. If it still has not settled, the court will give directions as to what affidavits or affirmations should be filed, and for the attendance of the officer or psychologist for cross-examination. The Social Welfare Department have informed us that in 1995/96 officers were required to attend court on 70 occasions.235 A mutually convenient date for the contested hearing will be allocated by the court registry after filing of the affidavits date.
2.174While those cases which are not settled are a minority, they usually involve more bitterness. Children can have a symbolic significance which makes this type of litigation bitter and protracted.236 It can lead to subsequent child abduction. Delay over a custody battle worsens the trauma for both children and spouses. In one study, it was found that it took 17 months on average to resolve the custody battle.237
2.175Because the court has jurisdiction to ensure that the welfare of the child is the paramount consideration, it is possible to apply to vary a custody or access order even if this was made by consent. Justification for such a variation can include, for example, a change in the living arrangements of the parent by remarriage or the need for more flexible arrangements as the children grow older.
2.176Order 25 of the High Court Rules provides for a Summons for Directions, which can be used to establish pre-trial reviews. Pre-trial reviews or settlement conferences provide for meetings between the parties and the judge, with or without their lawyers, to help identify the issues that are actually in dispute. Such meetings can also be used to encourage a settlement of the dispute, though this does not seem to be used in Hong Kong for that purpose. The judge’s role is that of facilitator.
Existing support services
2.177The Secretary for Home Affairs in a press statement on the 25 May 1995 emphasised that it was government policy, not to encourage divorce, but to devote “considerable resources to expanding and strengthening services in support of the family”. Marriage counselling and mediation constituted an integral part of the family case work services provided by the Social Welfare Department and subvented
234 Supra at 435.
235 The respective numbers for 1993/94 were 44 occasions, and 66 occasions in 1994/95. This should be contrasted with the large number of reports, which shows the strong role the reports play in settlement of disputes.
236 Wallerstein and Blakeslee, Second Chances: Men and Women a decade after divorce, (1989).
237 Johnston and Campbell, Impasses of Divorce: The dynamics and resolution of family conflict, (1988).