FR v. MF

HCMP 532/2021

[2021] HKCFI 1750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 532 OF 2021

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REASONS FOR DECISON

(Publication)

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1.  On 3 June 2021, this Court handed down a judgment ordering the children to be returned to France subject to protective measures being in place (“Judgment”).  I will continue to adopt the abbreviations in the Judgment herein, unless otherwise indicated.

2.  The Judgment handed down was anonymised.  As with usual practice of this Court, the Judgment will be published and uploaded to our Judiciary’s Legal Reference website.

3.  This Court received a letter dated 9 June 2021 from M’s solicitors that M objected to the Judgment to be published.  The reasons given were that although the Judgement was anonymised, “details of a lot of the family matters have been revealed in the Judgment and the Respondent [the mother] was concerned that people that know her family would be able to identify the family when reading the Judgment and it is possible that the Children might be affected as a consequence.”

4.  No submissions were received from F. Notwithstanding this, this Court decided that the reasons given by M were not valid nor sufficient to override considerations of open justice.  However, this Court was prepared to allow M to propose further redactions for this Court’s consideration. 

5.  The reasons for my above decision are set out hereinafter.

6.  Firstly, I will reiterate paragraph 429 (without its footnotes) in the Interim Report and Consultative Paper on “Review of Family Procedure Rules” published in February 2014 (“Interim Report”):

“The principle of open justice is essential to the impartial and efficient administration of justice. The transparency promotes the rule of law as well as public confidence in and respect of the legal system and forms the bedrock upon which the court derives its legitimacy. Open justice gives effect to the right of the public to be informed and the right of the media to inform the public. This principle of open justice is firmly enshrined in case law and constitutionally guaranteed under Articles 10 and 16 of the BOR on fair and public hearing and on freedom of expression respectively. However, the principle of open justice is not absolute. There are recognised exceptions where cases, because of their special nature and in the interests of justice, should be heard in private to the exclusion of the public.”

7.  Thus, as seen above, the principle of open justice with its exceptions governs how family cases are heard.  Matters relating to children and applications for financial provisions and ancillary relief are usually heard in private to the exclusion of the public.  Likewise, applications under the Child Abduction and Custody Ordinance Cap 512 (“Ordinance”) and the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“Convention”) are usually heard in private to the exclusion of the public. 

8.  Secondly, as for reporting of judgments in family proceedings, the governing ordinance is the Judicial Proceedings (Regulation of Reports) Ordinance, Cap 287 (“JPRRO”).  In particular, section 5 states as follows:

“(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) where the proceedings relate to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant;

(ab) subject to subsection (1A), where the proceedings are brought under the Child Abduction and Custody Ordinance (Cap. 512);

(b) where the proceedings are brought under Part II, IV or IVA of the Mental Health Ordinance (Cap. 136);

(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;

(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;

(e) where the court, having power to do so, expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.

(1A) The publication of a judgment, in which the identity of a person referred to is kept anonymous, of a competent court in proceedings under the Hague Convention is not of itself contempt of court if—

(a) none of the parties to those proceedings objects to that publication; and

(b) the court has made an order authorizing that publication.

(2) Without prejudice to subsection (1), the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court, having power to do so, expressly prohibits the publication.

(3) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section.

(4) In subsection (1A)—Hague Convention (《海牙公約》) means the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980.”

9.  Paragraphs 433-437 of the Interim Report governed the then position of publication of judgments in family proceedings.

10.  Thereafter, the Final Report on “Review of Family Procedure Rules” was published in 2015 (“Final Report”).  As seen in paragraphs 252 to 255 of the Final Report, there had been further developments in both UK and Hong Kong on the publication of judgments in family proceedings.  As a result thereof, the Judiciary decided to issue a practice direction (“PD”) in relation to anonymization and publication of judgments in family and matrimonial proceedings.

11.  Subsequently, PD 15.15 was introduced on 19 June 2015.  PD 15.15 applies to all “Concerned Proceedings “(as defined therein”) and includes proceedings under the Ordinance and Order 121 of the Rules of the High Court, Cap 4A[1].  In particular, paragraphs 21 and 22 of PD 15.15 state as follows:

“21.  All judgments in Concerned Proceedings, whether in hearings open to the public or not, should normally, in line with Article 10, conceal the identities of the parties and any children who are mentioned.  Accordingly, the names of the parties and children and any part of the judgments which may reveal their identity should be properly redacted unless there are good reasons not to do so.

22.  In light of the considerations of §21 above, all judgments of the Court of First Instance and the Family Court whether made in hearings open to the public or not will be published (if at all) in the following manner:

(a)  Copies of the judgments with initial redaction made by the Court will be released to the parties upon handing down.  Unless otherwise directed by the Court and subject to the steps below, the judgment will in due course be released for publication.

(b)  If any party to a hearing which is not open to the public objects to the publication of the judgment, or, if any party considers that further redaction is required, such a party should write to the Court within 14 days upon handing down of the judgment.

(c)  After receiving the party’s view on the publication or redaction, as the case may be, the Court may further redact the judgment as it deems fit.  Thereafter, the judgment may be released for publication in the usual manner if the Court so directs. 

(d)  In the event that no request for further redaction is made within 14 days after handing down of the judgment, or, in the case of a hearing which is not open to the public, no objection to publication of the judgment is received, the parties shall be taken to have no objection to the publication of the judgment as initially redacted by the Court.  The judgment will then be released for publication in the usual manner.”

12.  M’s concerns about the family being identified can be allayed by further redaction of the Judgment.  In light of the importance of open justice, and having considered M’s reasons, I am of the view M’s reasons are not valid nor sufficient for non publication.  This Court thus made the order for release of the Judgment but allowed M to provide further proposed redactions within 10 days for this Court’s consideration.  Subject to such further redactions as allowed by the Court, the Judgment shall be released for publication and uploading onto the Legal Reference website. 

13.  I will also add that the Hague Conference on Private International Law has in 1999 established a database INCADAT for decisions concerning the Convention.  INCADAT was introduced to promote mutual understanding between the Member States of each other’s decisions and to maintain if possible a consistent approach in the operation of the Convention.  The database is being used not only by judges and Central Authorities but also by legal practitioners, researchers and others.   

14.  I understand the practice in Hong Kong has been for any published judgments in relation to applications under the Ordinance and the Convention in Hong Kong to be uploaded to the INCADAT website through the assistance of the Hong Kong Central Authority.  I therefore believe the Hong Kong Central Authority will assist in uploading the final version of the redacted Judgment onto the INCADAT website, and if this is not the case, Ms Li should inform the Court.