Features

The current state of the law on the guardianship and custody of children means that the courts and family lawyers in Hong Kong continue to labour under a British statutory regime from the 1970s. Whilst other common law jurisdictions have moved away from a legal emphasis on the 'rights' and 'authority' of parents, Hong Kong still has no unified Children Act (England & Wales, 1989), Family Law Act (Australia, 1975 (as amended)) or Care of Children Act (New Zealand, 2004) based on a 'joint parental responsibility' model which places emphasis on the rights of the child to maintain a continuing relationship with both parents after divorce.

The government's move towards placing mediation centre stage in the resolution of family disputes (see the new draft 'Pactice Direction for Matrimonial Proceedings and Family Proceedings' Part X: Case Management (Order 25) para 15) has been almost universally welcomed by family practitioners. However, mediation in and of itself is no guarantee that the joint parental responsibility model will prevail in any agreement. Moreover, mediation requires if not wholesale regulation then, to a greater or lesser extent, the approval of the various mediation providers (including the Hong Kong International Arbitration Centre (HKIAC) incorporating the Mediation Council, the Hong Kong Mediation Centre (HKMC) and the Centre for Effective Dispute Resolution (CEDR)) by government, the Law Society and the Bar Association.

Collaborative Practice

Collaborative practice, by contrast, whilst always subject to the normal legal and professional rules of conduct, requires no more than a contractual agreement between trained professional representatives and the parties to act 'collaboratively' to resolve any particular family or matrimonial dispute. Collaborative practice offers divorcing clients the support, protection and guidance of legal professionals and others, by agreement, between both parties and their respective representatives. This agreement specifically precludes the professionals (if not the parties) from entering into litigation should the dispute fail to be resolved. Such collaborative process allows child psychologists, financial specialists and divorce counsellors as necessary to work together with the lawyer and his or her client as part of a team. If these teams fail to resolve the dispute, then they are all (the lawyers, experts and specialists) contractually prohibited from representing the parties in any future litigation in court.

The collaborative approach to family law and conflict resolution was the brainchild of Minnesota family lawyer Stu Webb, who made the unarguable observation that traditional civil litigation was not always helpful and was frequently more damaging to clients, and particularly to their children, than the divorce itself. Since 1990, the collaborative law movement has spread rapidly across the United States, Europe, Canada and Australia. The International Academy of Collaborative Professionals (IACP; www.collaborativepractice.com), based in Phoenix, Arizona, reports that over 10,000 lawyers in 46 states have been trained in collaborative law in the United States. In some areas, collaborative law is now the most commonly used method of resolving divorce, co-habitation and other family disputes. The UK group Resolution First for Family Law (formerly the Solicitors' Family Law Association; www.resolution.org.uk) now has more than 5000 family lawyers as members who are formally signed up to a Code of Practice (to be read in conjunction with the Law Society's Family Law Protocol and the Solicitors Practice Rules) that commits them to the constructive resolution of family disputes. The Code of Practice promotes a non-confrontational approach to family problems that considers the needs of the whole family and in particular the best interests of children. Central to the group's aims is the promotion of mediation and collaborative law practice. To date, over 1300 lawyers have completed the relevant training in England, where collaborative law was launched in 2003.

Hong Kong offers a contrast. As long ago as 1996 the Hong Kong Family Law Association (HKFLA; www.hkfla.org.hk) Executive Committee argued that family and child disputes fall into a 'special category' of civil litigation. The Committee resolved that a Code of Practice should be adopted to encourage a more conciliatory approach to work by solicitors in family law matters. However, although the HKFLA adopted its own voluntary Code in July 1998, the Law Society of Hong Kong chose not to adopt it. Indeed, the Law Society does not have any specific code of practice or protocol for solicitors engaged in family cases beyond the Solicitors' Guide to Professional Conduct which applies to the profession as a whole.

Where litigation involving families and young children is involved, this is both unsatisfactory and short-sighted. Over many years, policy makers and courts have recognised that the best interests of the child are always paramount and may therefore override the normal rules of civil litigation, even including legal professional privilege, when necessary. Any litigation that trespasses on the welfare of the child ought not to be subject only to a voluntary code promulgated by the HKFLA. The Solicitors' Guide to Professional Conduct ought to reflect the welfare principle and the special category of children in civil litigation. As the courts in other jurisdictions have made clear (Oxford County Council v M [1993] EWCA 31 per Sir Stephen Brown P):

".. proceedings under the Children Act are not adversarial ... [the judge erred] in following too closely the procedures of civil litigation which had given rise to the application of the doctrine of professional privilege in cases between party and party. Children's cases are not similar cases. They fall into a special category where the court is bound to undertake all necessary steps to arrive at an appropriate result in the paramount interests of the welfare of the child. If a party, having obtained the leave of the court, were to be able to conceal, or withhold from the court, matters which were of importance and were relevant to the future of the child, there would be a risk that the welfare of the child would not be promoted as the Children Act requires. In my judgment, the court must have power to override legal professional privilege in these circumstances."

By agreeing to adopt the collaborative practice model for the resolution of matrimonial and family disputes, lawyers and other professionals agree to bind themselves contractually to this principle by default, along with the welfare principle, regardless of what may be 'permissible' behaviour and conduct under the general professional rules. The agreement not to litigate, or more specifically, the agreement by all the professionals in the team to bar themselves from litigating the conflict in the event that matters have to go to court, is central to the collaborative process. Collaborative professionals are trained in how to conduct non-confrontational negotiations and are contractually obliged to keep all disagreements in check. In many respects, this is the precise opposite of litigation, where parties are expected to air their grievances (however unreasonable) before a judge. Collaborative practice, by contrast, aims to build any settlement on areas of agreement rather than perpetuate disagreement. According to the IACP, the guiding principle is respect, and a respectful tone 'encourages compassion, understanding and cooperation'. This is not merely encouraged but built in to the terms of the collaborative agreement itself. For those who would argue that this is a somewhat quixotic view, the litigation route is certainly not a risk-free alternative. As any family lawyer knows all too well, litigation is no stranger to the most bruising acrimony.

Thus, just as under the HKFLA voluntary Code, collaborative professionals agree upon a number of procedural and behavioural requirements, such as to:

• conduct negotiations in a respectful, constructive and non-confrontational way;
• avoid the use of inflammatory language, both written and spoken;
• focus on what is important to the parties (rather than the strict requirement of the court's procedures and timetables);
• ensure that clients (and their lawyers) put the best interests of the children first;
• ensure the parties understand the huge benefit to children if parents can cooperate over their 'care and upbringing' rather than 'access', 'custody' and 'control';
• ensure that all parties are open and honest in all dealings;
• retain professional objectivity and respect for everyone involved;
• take into account the long-term consequences of actions and communications as well as the short-term implications;
• make clients aware of the benefits of behaving in a civilised way;
• keep financial and children issues separate;
• ensure flexibility and control, allowing parties to move at their own pace;
• ensure that consideration is given to balancing the benefits of agreement against the likely costs (financial and emotional) of appointing a new team to conduct litigation.

The last point in this non-exhaustive list is seen to be most effective in keeping the parties at the negotiation table. In a collaborative case, the parties strive to reach a fair settlement through a series of meetings between the two parties and their lawyers and, if required, other experts including financial experts. The primary focus of these sessions is to identify the areas of dispute and help create a settlement that is consistent with the parties?priorities, goals, needs and interests. In other words, each party makes their own decisions based on their own priorities, not those set by the court or legal teams.

A priori, the collaborative law approach, as with mediation, can seem counter-intuitive to lawyers who are drilled in litigation. However, collaborative practice, again like mediation, delivers a process that, whilst not seeking to oust the jurisdiction of the courts, strives to avoid litigation if at all possible. As with any form of 'alternative' dispute resolution some cases will not be suitable: for example, where there is a history of domestic violence or child abuse, or where either party is clearly failing to make full and frank disclosure. Such conduct aside, the fact remains that the parties themselves are, properly advised, invariably in a better position to know what is in their own best interests upon the break-up of their family than is a judge. Moreover, having reached a collaborative agreement based on give and take by both sides, the agreement is far less likely to fall apart (as too often happens) than a court-imposed order where, by definition, one side will have 'lost' and continues to nurture a grievance.

Most importantly, because collaborative practice is non-adversarial and child-focused, the participation of children can be positively encouraged, and the process can be designed to meet the needs of any particular family circumstances. Until very recently, the courts have been minded to keep children at arm's length in the adversarial process in order to protect them from the often bitter and damaging fallout from parental disputes. Most damaging of all, in custody and access disputes, young children are all too often put in the position of having to choose directly or indirectly between the parents (for example via Social Welfare Reports) and are forced, in effect, to take sides. Contrary to some prevailing legal and judicial opinion, there is now increasingly clear evidence to suggest that the participation of children in a family's transition through divorce and separation is not only possible but also essential if the welfare principle is to remain paramount and have any real meaning. Listening to the concerns of the children and taking account of children's views is not only in the best interests of
the parents but also often clearly leads to the best outcomes for the child.

Hong Kong became a signatory to the United Nations Convention on the Rights of the Child (UNCRE) in 1994. The UNCRE not only outlines the basic human rights for children but also insists upon their right to have their views heard. Article 12 provides:

"States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of the national law."

The collaborative process allows this from the outset. It is written in to the agreement between the parties and their lawyers who, in the words of Demson and Huddart:

".. must be fully trained in 'interest-based' negotiation and communication skills; be prepared to let go of their traditional control over the process, and ready to encourage clients to make use of the expertise of other professionals when necessary. Unlike mediation, lawyers have a role in the negotiations as coaches to assist their clients, but unlike traditional lawyer-driven negotiations, the parties are encouraged to start taking responsibility for the process and the outcome. Lawyers must work ethically and co-operatively with each other to ensure their clients are participating fairly in the process, including providing full disclosure."

Collaborative practice centres on listening to children through their participation, depending on their age, emotional maturity and willingness to take part in the process, where, as is often the case, there is an express desire to be heard. To this end the collaborative team may, for example, invite impartial comments from a child's teacher, psychologist or family doctor. The focus is always on child protection and where the level of conflict between the parents becomes heightened the child itself may choose a trusted person within the team to be a neutral spokesperson on their behalf. The role of this child specialist is very different to that of the Social Welfare Officer in litigated custody and access battles, who is responsible for assessing the parents as well as the child before making a recommendation to a judge often following a statutory welfare checklist (although no such checklist exists in Hong Kong).

Clients and lawyers need to understand that collaborative practice is not necessarily cheaper than funding litigation as it is by no means a simple or straightforward process. It requires fully trained practitioners to make it an effective alternative. Legal professionals in Hong Kong need to have a clear understanding of its benefits and drawbacks. With these in mind, legal professionals should also know that it is possible to voluntarily take this initiative if they so wish. There is nothing to stop firms of family specialists and others from forming collaborative practice groups to bring about change in this area.

In October last year, the leading collaborative law specialist Nancy Cameron QC gave a series of talks to the HKIAC and the HKFLA supported by the Hong Kong University LLM in Arbitration and Dispute Resolution. As a next step, the HKFLA is currently working with the HKU LLM in planning a Children's Issues Forum to address the resolution of family disputes involving children. The Forum is planned to be a two-day multi-disciplinary international conference that will bring together ADR and collaborative law specialists from around the world, together with the Hong Kong judiciary and legal profession, academics, government officials, health care professionals, mediators, counselors, social welfare department and community organisations. The main focus will be on strategies for minimising the adversarial impact of family proceedings so as to promote the best interests and well being of Hong Kong children.

The Forum will consider the development of a children's dispute resolution procedure. It will also highlight ways to facilitate greater co-operation between those involved in the dispute resolution process and improve the process of implementing arrangements for Hong Kong children. This aspect will concentrate, in particular, on mediation and the introduction of collaborative practice to Hong Kong, and explore ways in which children can participate in the divorce process whilst protecting them and listening to them,

inter alia

, by insisting that lawyers and their clients agree to set aside adversarial practices in reaching a binding settlement.

<!--Session data-->