Abstract
PurposeThis paper aims to analyse the different requirements of Practice Direction 15.10 (which governs the process of family mediation in Hong Kong) and Practice Direction 31 (which governs the process of general mediation in Hong Kong), and to highlight the need to incorporate the spirit of family mediation into legislation to better protect children’s interest in a family dispute.Design/Methodology/approachThe paper reviews and compares the content on Practice Direction 15.10 and Practice Direction 31 issued by Chief Justice of the Hong Kong Court of Final Appeal, and adopts interpretative and analytical approaches to evaluate their impact.FindingsIn an effort to promote parental responsibility-based negotiation in divorce proceeding, a missed opportunity in enacting the Children Proceedings (Parental Responsibility) Bill in 2015 might be a blessing in disguise as it offers another chance for policy makers to consider how to direct parties to negotiate and communicate, to seek and benefit from professional guidance on a continuous basis, and to seek alternative channels to resolve disputes other than the court room. The policy and the law advocating a switch from a “rights-based” to “responsibility-based” approach in handling children’s matters should be revisited by incorporating the spirit of family mediation into legislation.Originality/valueAnalyses are conducted through direct contextual review and documentary research. This paper conducts literal analysis of court guidance and unveils policy implications for the general public. It would be of interest to judicial officers, scholars and government officials concerning children’s rights and parental responsibility in divorce proceedings.
Highlights
The notion that parents are best positioned to resolve family matters involving children is deeply rooted in our society but what if the parents have decided to separate and are hostile towards each other? Resorting to litigation may be one way out but just as the Chinese proverb puts it, “Even the upright judge finds it hard to settle family matters.”
A Working Group appointed by the Chief Justice in 1997 recognized that a non-adversarial approach in resolving disputes arising from marital breakdown would minimize the attendant trauma and acrimony which may adversely affect the welfare of children, and that the parties are more likely to comply with the agreement (Hong Kong Legislative Council, 1999), the Judiciary accepted the recommendation of the Working Group and launched a 3-year Pilot
This paper explores what it takes to better protect children’s interest in matrimonial disputes through the promotion of family mediation
Summary
The notion that parents are best positioned to resolve family matters involving children is deeply rooted in our society but what if the parents have decided to separate and are hostile towards each other? Resorting to litigation may be one way out but just as the Chinese proverb puts it, “Even the upright judge finds it hard to settle family matters.” A Working Group appointed by the Chief Justice in 1997 recognized that a non-adversarial approach in resolving disputes arising from marital breakdown would minimize the attendant trauma and acrimony which may adversely affect the welfare of children, and that the parties are more likely to comply with the agreement (Hong Kong Legislative Council, 1999), the Judiciary accepted the recommendation of the Working Group and launched a 3-year Pilot© Sau-wai Law. The notion that parents are best positioned to resolve family matters involving children is deeply rooted in our society but what if the parents have decided to separate and are hostile towards each other? Resorting to litigation may be one way out but just as the Chinese proverb puts it, “Even the upright judge finds it hard to settle family matters.”. © Sau-wai Law. Published in Public Administration and Policy. The full terms of this license may be seen at http://creativecommons.org/licences/by/4.0/legalcode
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