PRACTICE DIRECTION – SL7
Guidance on Direct Judicial Communications in
International Family Disputes Affecting Children
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Explanatory Note
Direct judicial communications refer to communications that take place between sitting judges of different jurisdictions concerning a specific case.
It has now been recognized and firmly established in some foreign jurisdictions such as England & Wales, Australia, New Zealand, Canada and United States of America that direct judicial communications between the International Hague Network of Judges (“Network”) is a key mechanism to assist the practitioners and judges in resolving cases with an international element in the best interests of children and of justice in general. These communications will often result in considerable time savings and better use of available resources, all in the best interests of the child.
While direct judicial communications mostly take place in Hague abduction cases under the 1980 Hague Child Abduction Convention (“1980 Convention”), the trend is to extend such communications to other family cases affecting children. The Hague Permanent Bureau has recently issued an Emerging Guidance and General Principles for Judicial Communications (“the Hague Guidance”). It provides transparency, certainty and predictability to direct judicial communications for both judges involved as well as the parties and their representatives. It is meant to ensure that such communications are carried out in a way which respects the legal requirements in the respective jurisdictions and the fundamental principle of judicial independence in carrying out Network functions.
Hong Kong is an international and multi-cultural society. Although the majority of the family cases concern local Chinese, some of the most difficult cases involve an international element, such as abduction cases under the 1980 Convention, relocation cases and access outside Hong Kong, and other cases involving jurisdictional disputes. In these cases, direct judicial communications may be necessary. This Practice Guidance is issued to facilitate such communications. Some of the major provisions in the Hague Guidance have been incorporated. |
Introduction
1. This Guidance is issued to assist judges and practitioners dealing with family cases affecting children in which direct judicial communications may arise. It is not intended to change the current rules or procedure or to affect the substantive rights of the parties, but is simply intended to facilitate cooperation in international cases, where necessary.
2. There are Network Judge(s) designated for Hong Kong, and it is part of their role to receive and, when necessary, channel incoming judicial communications and initiate or facilitate outgoing communications. The name(s) of the current designee(s) are set out in Annex A.
3. Matters which may be the subject of direct judicial communications include, for example:
(a) scheduling the case in the foreign jurisdiction:
(i) to make interim orders, eg, support, measure of protection;
(ii) to ensure the availability of expedited hearings;
(b) establishing whether protective measures are available for the child or other parent in the jurisdiction to which the child would be returned in the case of a child abduction case and, in an appropriate case, ensuring the available protective measures are in place in that jurisdiction before a return is ordered;
(c) ascertaining whether the foreign court can accept and enforce undertakings offered by the parties in the initiating jurisdiction;
(d) ascertaining whether the foreign court can issue a mirror order (ie, same order in both jurisdictions);
(e) confirming whether orders were made by the foreign court;
(f) verifying whether findings about domestic violence were made by the foreign court;
(g) verifying whether a transfer of jurisdiction is appropriate.
4. “Central Authority” in this Practice Guidance shall mean the relevant Central Authority designated under the applicable Hague Convention.
5. For the avoidance of doubt, all references to “parties” or their “representatives” shall, where a child is to be separately represented, include such child’s next friend/guardian ad litem, or the Official Solicitor where he has been appointed by the court to represent the child.
Overarching Principles
6. Every judge engaging in direct judicial communications must respect the law of his or her jurisdiction.
7. When communicating, each judge seized should maintain his or her independence in reaching his or her own decision on the matter at issue.
8. Communications must not compromise the independence of the judge seized in reaching his or her own decision on the matter at issue. Any discussion about the merits of the case should be avoided.
Procedure and Safeguards
9. The parties or any of them may raise with the judge the desirability and need for direct judicial communications.
10. Before deciding whether to engage in direct judicial communications, the judge should consider whether there is a question of foreign law or procedure to discuss with a judge in the foreign jurisdiction and whether the question can be answered or dealt with by the Central Authority in Hong Kong or the Central Authority in the foreign jurisdiction, and if so, the judge may consider having the Central Authority address the issue or obtain the information.
11. In Contracting States to the 1980 Convention in which direct judicial communications are practised, the following are commonly accepted procedural safeguards:
(1) Except in special circumstances, parties are to be notified of the nature of the proposed communication;
(2) A record is to be kept of communications and it is to be made available to the parties;
(3) Any conclusions reached should be in writing;
(4) Parties or their representatives should have the opportunity to be present in certain cases, for example via conference call facilities.
12. The above commonly accepted procedural safeguards should be adopted subject to our own legislation and rules.
13. If in the special circumstances where parties were not notified in advance of the nature of the proposed communications, the judge should provide written reasons to the parties as to why there was no notification.
14. If a party objects to the proposed communications, the judge should direct submissions be lodged from all parties, and if necessary, should direct an oral hearing, before ruling on the matter, giving short reasons for such ruling.
15. If both judges involved in the communication agree, the parties or their representative may be permitted to be present during the oral communication. If one party or representative is to be present, then the other party or representative should be permitted to be present.
16. Subject to the agreement of both judges involved in the oral communications:
(a) such oral communications may be conducted in the presence of the parties or their representatives by way of video conference or by conference telephone call;
(b) the parties or their representatives may be permitted to speak during the communication, but if one party or representative wishes to speak, then the other party or representative should be permitted a chance to answer.
17. Any correspondence or email or written communications between the judges should be preserved for the record.
Initiating the Communication
18. In considering whether the use of direct judicial communications is appropriate, the judge should have regard to speed, efficiency and cost-effectiveness.
19. Judges should consider the benefit of direct judicial communications and when in the procedure it should occur. The timing of the communication is a matter for the judge initiating the communication.
Making Contact with a Judge in the Other Jurisdiction
20. The initial communication should ordinarily take place between our Network Judge and the Network Judge of the other jurisdiction, if any, in order to ascertain the identity of the judge seized in that jurisdiction. If no Network Judge has been appointed in the other jurisdiction, the Central Authority of Hong Kong or the party within jurisdiction is to assist in providing the identity of the judge in the other jurisdiction.
21. When making contact with a judge in another jurisdiction, the initial communication should normally be in writing, subject to provisions set out in this Guidance in relation to written communications, and should in particular identify:
(a) the name and contact details of the initiating judge;
(b) the nature of the case (with due regard to confidentiality concerns);
(c) the issue on which communication is sought;
(d) whether the parties before the judge initiating the communication have consented to this communication taking place;
(e) when the communication may occur (with due regard to time differences);
(f) any specific questions which the judge initiating the communication would like answered;
(g) any other pertinent matters.
22. The time and place for communications between the courts should be to the satisfaction of both courts. Personnel other than judges in each court may communicate fully with each other to establish appropriate arrangements for the communication without the necessity for participation of counsel unless otherwise ordered by either of the courts.
The Form of Communications and Language Difficulties
23. Judges should use the most appropriate technological facilities in order to communicate as efficiently and as swiftly as possible.
24. The initial method and language of communication should, as far as possible, respect the preferences, if any, indicated by the intended recipient in the list of members of the Network Judges, if any. Further communications should be carried out using the initial method and language of communication unless otherwise agreed by the judges concerned.
25. Where two judges do not understand a common language, and translation or interpretation services are required, such services could be provided by the court or the Central Authority in the country from which the communication is initiated.
Written Communications
26. Written communications, particularly in initiating the contact, are valuable as they provide for a record of the communication and help alleviate language and time zone barriers.
27. Where the written communication is provided through translation, it is good practice also to provide the message in its original language.
28. Communications should always include the name, title and contact details of the sender.
29. Communications should be written in simple terms, taking into account the language skills of the recipient.
30. As far as possible, appropriate measures should be taken for the personal information of the parties to be kept confidential.
31. Written communications should be transmitted using the most rapid and efficient means of communication and, in those cases where it is necessary for confidential data to be transmitted, secured means of communication should be employed.
32. Written communications should always be acknowledged as soon as possible with an indication as to when a response will be provided.
33. All communications should be typewritten.
34. Ordinarily, communications should be in writing, save where the judges concerned are from jurisdictions with proceedings conducted in the same language.
Oral Communications
35. Oral communications are encouraged where judges involved come from jurisdictions which share the same language.
36. Where the judges do not speak the same language, one or both of them, subject to an agreement between the two judges concerned, should have at their disposal a competent and neutral interpreter who can interpret to and from their language.
37. Where necessary, personal information concerning the parties should be anonymized for the purpose of oral communication.
38. Oral communications can take place by either telephone or video conference and in those cases where it is necessary that they deal with confidential information, such communications should be carried out using secured means of communication.
Post Communications
39. A written record of the communications should be sent to the parties as soon as practicable.
Keeping Central Authority informed of judicial communications
40. Where appropriate, the judge engaged in direct judicial communications may consider informing his or her Central Authority that a judicial communication will take place.
41. This Practice Direction supersedes the previous Practice Direction SL7 on Guidance on Direct Judicial Communications in International Family Disputes Affecting Children dated 26 June 2024.
42. This Practice Direction shall come into effect on 25 November 2024.
Dated this 11th day of November 2024
| (Jeremy Poon) | |
| Chief Judge of the High Court |
Annex A
Network Judge(s)
The Hon Madam Justice Queeny Au-Yeung
Judge of the Court of First Instance of the High Court
High Court Building, Hong Kong
haguenetworkjudge@judiciary.hk
Telephone contact: 2825 4532
The Hon Mr Justice Herbert Au-Yeung
Judge of the Court of First Instance of the High Court
High Court Building, Hong Kong
haguenetworkjudge@judiciary.hk
Telephone contact: 2825 4530