Practice Directions – 15.15
Matrimonial and Family Proceedings - Miscellaneous
Introduction
1. This Practice Direction applies to :
(a) Matrimonial Proceedings and Family Proceedings as defined in Practice Direction 15.12 – Matrimonial Proceedings and Family Proceedings (“PD 15.12”);
(b) Proceedings brought under the inherent jurisdiction of the Court of First Instance including wardship proceedings; and
(c) Proceedings under the Child Abduction and Custody Ordinance (Cap.512), and Order 121, Rules of the High Court (Cap. 4A)
collectively referred to as “Concerned Proceedings” below.
2. For the purpose of this Practice Direction :
(a) “Court” means the Court of First Instance or the Family Court (a division of the District Court which is for the time being assigned by the Chief Justice to deal with Matrimonial Proceedings and/or Family Proceedings as defined in PD 15.12).
(b) “Article 10” means Article 10 of the Hong Kong Bill of Rights Ordinance (Cap. 383).
(c) A hearing open to the public is one where the hearing is open to the press and the public to attend. A hearing in private has the same meaning as a hearing not open to the public.
(d) A hearing not open to the public is a closed one where the press and the public are excluded from attending.
3. This Practice Direction deals with the following aspects of Concerned Proceedings:
(a) Mode of hearing;
(b) Anonymisation of the parties; and
(c) Publication of judgments.
Mode of Hearing
4. Where statutory provision(s) specifically require proceedings to be not open to the public, such proceedings shall not be open to the public in accordance with such provisions(s). Such proceedings are listed in Schedule 1.
5. The proceedings listed in Schedule 2 would usually not be open to the public. In relation to such proceedings, it is considered that having regard to their nature, one or more of the reasons for excluding the press and the public laid down in Article 10 are usually satisfied. Accordingly, such proceedings would usually not be open to the public.
6. With regard to §5, if in a particular case, the Court is of the view that none of the reasons in Article 10 is satisfied in the circumstances of the case concerned, the Court may, whether upon a party’s application (as to which see §8 below) or on its own motion, order that the hearing be open to the public.
7. At any stage of any proceedings other than those governed by §§4 and 5 above, where the Court is of the view that one or more of the reasons in Article 10 are satisfied, it may, whether upon a party’s application (as to which see §8 below) or on its own motion, order that a hearing open to the public be closed to the press and the public for the whole or part of the hearing.
8. Where any party wishes to apply for an order referred to in §6 or 7 above, the following shall apply:
(a) The applying party should first discuss with all the other parties to see if they consent to the application. If they do, the applying party should, as soon as practicable and in any case not less than 28 days before the hearing in question, apply to the Court in writing with grounds in support. The letter to the Court should indicate that the application is by way of consent by all the parties.
(b) If the application is opposed, the applying party should, as soon as practicable and in any case not less than 28 days before the hearing in question, apply to the Court in writing with grounds in support. The letter to the Court should identify the party who consents to the application (if any) and the party who does not. The opposing party should write to the Court within 14 days after the application is taken out (or such other time as the Court may direct), stating his grounds in opposition. The Court will deal with the application on paper without an oral hearing unless otherwise directed. If the Court decides to hold an oral hearing, such a hearing should not be open to the public at the beginning (and the daily cause list for this hearing will state so), but the Court has full discretion to decide whether and at what stage the hearing should be open to the public.
9. Generally speaking, court proceedings should only be not open to the public if the Court is satisfied that one or more of the reasons for excluding the press and the public laid down in Article 10 are satisfied and by nothing short of the exclusion of the public can justice be done. Therefore, the applicant for an exclusion order is expected to consider before applying for such an exclusion whether something short of exclusion can meet his concerns, as will normally be the case. The burden of establishing the need to depart from the general practice of open administration of justice lies on the person seeking it. Such need must be established by clear and cogent evidence. As it is open to the Court to exercise its power differently with regard to different parts of the proceedings, parties should seriously consider whether their applications (even if it is satisfied that an application is required) should be made in respect of the entire hearing or only limited to part of the hearing.
10. Where the Court has made an order referred to in §6 or 7 above, it may subsequently revoke or vary such an order.
11. The party filing a summons or notice for hearing in chambers should specify therein, in accordance with this Practice Direction, whether the hearing is to be open to the public or not open to the public. If the hearing in question does not fall within Schedule 1 or Schedule 2, but a party intends to make an application under §8 above for an order that the hearing be closed to the public, the summons or notice for hearing should nevertheless state that the hearing is to be open to the public. If the Court subsequently allows the application, the daily cause list for the substantive hearing will state that the hearing is closed to the public.
12. This Practice Direction is without prejudice to the Court’s powers to adjourn the hearing of any summons or other application from chambers into court and subsequently from court into chambers pursuant to Order 32 rule 18 of the Rules of the High Court or Order 32 rule 18 of the Rules of the District Court (Cap.336H), as the case may be.
Anonymisation of the Parties
13. Where the proceedings are not open to the public, the parties are normally anonymised unless the Court otherwise directs.
14. Where the proceedings are open to the public, the parties are normally not anonymised unless the Court otherwise directs.[1]
15. Where a party wishes to apply for an order to de-anonymise the parties where the proceedings are not open to the public or for an anonymity order where the proceedings are open to the public, the steps set out in §8 above apply mutatis mutandis. In the event that an oral hearing is directed to be held, the parties will be anonymised in the daily court list.
16. For adoption cases, if the applicant for an adoption order desires that his identity shall be kept confidential, the procedures under the Adoption Rules (Cap.290A) and the Convention Adoption Rules (Cap.290D) should be followed.
17. In some cases, a party may wish to obtain an anonymity order pursuant to which parties would be anonymised in the court files, daily cause lists, decisions, judgments and court orders (“general anonymity order”) (for example, in proceedings concerning wardship, abduction, custody and/or access). The applicant is required to prepare an affidavit in which sufficient materials are included to satisfy the Court that such an order should be made. The applicant may then cause the affidavit be placed before the Practice Master (if the action is commenced or to be commenced at the Court of First Instance) or a Family Judge (if the action is commenced or to be commenced at the Family Court) who would decide whether the matter can be disposed of on paper or whether an oral hearing is required. If an oral hearing is required, such a hearing will be heard in chambers (not open to public).
18. The applicant may apply for a general anonymity order in relation to his intended proceedings first before issuing his proceedings. In such a case, the Court would either decide the question of anonymity before the commencement of the proceedings, or give directions to preserve anonymity pending the Court’s decision.
19. If a general anonymity order is granted before the commencement of proceedings, when the applicant approaches the Registry counter for issuing an originating document with names concealed, he has to inform the counter clerk of the general anonymity order and file the order as soon as practicable.
20. In the event that the applicant has to commence proceedings immediately and does not have time to make an application for a general anonymity order first, he should apply for such an order at the same time as commencement of proceedings and have his application for a general anonymity order (supported by an affidavit) placed immediately before the Practice Master or a Family Judge (as the case may be – see §17 above). The Court would either deal with his application there and then (if circumstances allow), or more likely, grant him an interim general anonymity order pending the final disposal of his application (either on paper or at an oral hearing in private).
Publication of Judgments
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.
Transfer from Family Court to the Court of First Instance and vice versa
23. Any order made under §§6, 7, 15 and 17 above by the Family Court or the Court of First Instance will remain in force despite transfer from one court to another unless it is ordered otherwise.
Before the Court of Appeal
24. All hearings in the Court of Appeal are normally conducted in open court. This is so even if the proceedings below were heard in private. The Court of Appeal may however hold the hearing in private or make an anonymisation order if it is satisfied it is necessary for the proper administration of justice.
25. It is the current practice of the Court of Appeal that even though an appeal is heard in open court, the names of the parties in Concerned Proceedings are anonymised in the daily cause list and the judgment thereof. This practice will continue to apply, unless the Court of Appeal directs otherwise where appropriate.
26. If a party to the proceedings wishes to apply for an order that any hearing before the Court of Appeal should be heard in private or for a further anonymity order (going beyond the usual anonymisation given by the Court of Appeal as outlined in §25 above), the applicant must take out a summons for directions. This is so even if the application is by consent. The Court of Appeal will then give directions for future conduct as it deems appropriate in the circumstances of the case.
27. All judgments of the Court of Appeal in Concerned Proceedings would be redacted in accordance with the approach set out in §21 above. For the avoidance of doubt, the procedure provided in §22 herein is inapplicable to the Court of Appeal, and unless otherwise directed by the Court, judgments (as redacted) will be handed down in open court and released for publication in the usual manner.
Order
28. An order made by the Court at a hearing in chambers not open to the public should be so stated expressly therein.
Right of audience
29. The existing rights of audience of solicitors in chambers hearings applicable to civil proceedings shall apply to proceedings covered by this Practice Direction, whether the chambers hearing is open to the public or not open to the public.
30. The existing rights of persons entitled to appear before a master in chambers and a taxing master as provided for in Practice Directions PD14.1 and Part D of PD27 shall continue to apply, whether the chambers hearing is open to the public or not open to the public.
Effective Date
31. This Practice Direction will take effect on 2 July 2015.
Dated this 19 day of June 2015.
|
(Geoffrey Ma) Chief Justice |
Schedule 1
Proceedings required by legislation to be not open to the public:
|
Ordinance/Rules |
Provisions |
Nature of proceedings |
|
Adoption Rules (Cap.290A) |
r.4 |
On all proceedings under the Adoption Ordinance (Cap.290)[2] |
|
Convention Adoption Rules (Cap.290D) |
r.5 |
Schedule 2
Types of proceedings which are usually not open to the public by reason of their nature include the following:
|
Ordinance/Rules |
Provisions |
Nature of proceedings |
|
Rules of the High Court (Cap.4A) |
Order 54 |
On applications for writ of
habeas corpus ad subjiciendum on behalf of a minor
|
| Order 90 |
On applications relating to minors |
|
| Order 121 |
On all applications under the Child Abduction and Custody Ordinance (Cap.512) |
|
| Guardianship of Minors Ordinance (Cap.13) | s.23 |
On all applications under the Ordinance |
| Separation and Maintenance Orders Ordinance (Cap.16) |
On all applications under the Ordinance except judgment summonses |
|
| Matrimonial Causes Ordinance (Cap.179) |
On all applications relating to children under the Ordinance
|
|
| s.52(3) |
On questions of sexual capacity in proceedings for nullity of marriage |
|
|
Matrimonial Causes Rules (Cap.179A) |
On all applications relating to children under the Rules
|
|
| r.64 |
On applications for rescission of decree nisi by consent |
|
| r.81 |
On applications for ancillary relief or question arising thereon having been referred or adjourned to a judge |
|
| Marriage Ordinance (Cap.181) | s.18A |
On applications for consent to marriage in respect of a party over 16 but under 21 years of age |
| Maintenance Orders (Reciprocal Enforcement) Ordinance (Cap.188) |
On all applications under the Ordinance except judgment summonses |
|
|
Domestic Violence Rules or the Domestic and Cohabitation Relationships Violence Rules, as the case may be (Cap.189A) |
r.8 | On all proceedings under the Ordinance |
| Matrimonial Proceedings and Property Ordinance (Cap.192) | s.2A and s.25 |
On all applications under the Ordinance except judgment summonses |
|
Rules of the District Court (Cap.336H) |
Order 90 | On applications relating to minors |
| Parent and Child Ordinance (Cap.429) | s.8(3) |
On applications for declaration of parentage, legitimacy or legitimation |
| Child Abduction & Custody Ordinance (Cap.512) |
On all applications under the Ordinance |
|
| Human Reproductive Technology Ordinance (Cap.561) | s.35(3) and (4) |
On questions as to whether a person is or is not the parent of a child |
| Practice Direction 15.11 |
Financial Dispute Resolution hearings |
|
| Practice Direction 15.13 |
Children Dispute Resolution hearings |
[1] In relation to pronouncement of decree nisi in undefended divorce cases which are heard in open court, the current practice of the Family Court is that parties’ names are not shown in the daily cause list. This practice shall remain unchanged despite the promulgation of this Practice Direction.
[2] Subject to the Court’s approval, family members and friends of the applicants are allowed to attend the proceedings.