This document provides an overview of child abuse and domestic violence issues relevant to family lawyers. It defines various types of child abuse, including physical, sexual, emotional/psychological abuse and neglect. It discusses prevalence rates of abuse, health consequences, children's rights, and the legislative framework around child protection. Key aspects of the child protection system are outlined, including definitions of abuse, reporting procedures, investigations, risk assessments, welfare planning, and data privacy issues. Civil and criminal liability issues are also addressed.

1. Domestic Violence &
Child Abuse
5 August 2016
Azan Marwah
Shaphan Marwah
1
What family lawyers need to know

2. The Game Plan
1. Child Abuse and Neglect
2. Domestic Violence
3. Procedures in Family Court
2

3. Topic 1:
Child Abuse and
Neglect

4. Abuse and Neglect
Child Protection
Data Privacy
Criminal Liability
Civil Liability
Legal Aid
The Plan

5. Definition of Abuse (1)
“Child abuse or maltreatment constitutes all forms of
physical and/or emotional ill-treatment, sexual
abuse, neglect, or negligent treatment, or
commercial or other exploitation, resulting in actual
or potential harm to the child’s health, survival,
development or dignity in the context of a
relationship of responsibility, trust or power.”
Report on the Consultation on Child Abuse Prevention, 29-31 March 1999, WHO,
Geneva (WHO/HSC/PVI/99.1)
5
World Health Organisation

6. Definition of Abuse (2)
child abuse 1. Intentional or neglectful physical or
emotional harm inflicted on a child, including sexual
molestation…
2. An act or failure to act that presents an imminent
risk of serious harm to a child.
child neglect. The failure of a person responsible for
a minor to care for the minor’s emotional or physical
needs.
6
Black’s Law Dictionary

7. Definitions of Abuse (3)
2.1 In a broad sense, child abuse is defined as
any act of commission or omission that
endangers or impairs the physical /
psychological health and development of an
individual under the age of 18.
Procedural Guide for Handling Child Abuse Cases (Revised 2015), Social Welfare
Department
7
Social Welfare Department

8. Child Development
• Physical development
• Emotional and psychological development
• Language development
• Cognitive development
• Social development
• Development of independence and autonomy

9. Child Development
Working together to safeguard children, March
2015

10. Types of Child Abuse
(1) Physical Abuse
(2) Sexual Abuse
(3) Emotional/Psychological Abuse
(4) Neglect
10

11. Neglect
Failure to meet developmental needs, e.g.:
• Food
• Clothing
• Warmth
• Hygeine
• Intellectual stimulation
• Contact with others
• Shelter
• Supervision
• Safety
• Attachment to and
affection from adults
• Medical care

12. Emotional/Psychological
Abuse
When the developmental need for affection, approval, consistency and
security is not met, e.g.:
• Spurning
• Terrorising
• Isolating
• Corrupting
• Denying emotional responsiveness
• Making a child feel she/he is worthless or unloved
L v N (FCMC 5693/2000, 10 December 2001)

13. Physical Abuse
Any non-accidental, actual or potential physical harm
(from acting or failing to act) within a carers
control, e.g.:
• Use of force
• Poisoning
• Suffocation
• Burning

14. Sexual Abuse
General Comment 13 to the UNCRC, §25:
1. The inducement or coercion of a child to engage in any
unlawful or psychologically harmful sexual activity;
2. The use of children in commercial sexual exploitation;
3. The use of children in audio or visual images of child sexual
abuse;
4. Child prostitution, sexual slavery, sexual exploitation in travel
and tourism, trafficking (within and between countries) and
sale of children for sexual purposes and forced marriage.
Many children experience sexual victimization which is not
accompanied by physical force or restraint but which is
nonetheless psychologically intrusive, exploitive and
traumatic.

15. Prevalence
• 25% of adults report being physically abused as
children
• 20% of women and 8% of men report being
sexually abused as children
WHO (Reviewed July 2016)
(Global Statistics)

16. Prevalence
• 45% of children reported physical assault
• 72% of children reported psychological
aggression
• 36% of children reported neglect
Chan, K. L. (2005). Study on Child Abuse and Spouse Battering: Report on
findings of Household Survey. [A Consultancy Study Commissioned by the
SWD of the HKSAR]. Hong Kong: Department of Social Work & Social
Administration, the University of Hong Kong. )
(Hong Kong Statistics)

17. Associated Health
Consequences
• Stress
• Cognitive impairment
• Risk taking behaviours
• Poor self-esteem
• Depression and anxiety
• Violence
• Smoking
• Poor relationships
• Development delay
• Eating and sleep
disorders
• Obesity
• Risky sexual behaviour
• Unintended pregnancy
• Drug and alcohol abuse
• Post traumatic stress
disorder
• etc…
World Report on violence and Health, WHO (2002)

18. Children’s Rights
Every child shall have, without any
discrimination as to race, colour, sex,
language, religion, national or social
origin, property or birth, the right to such
measures of protection as are required
by his status as a minor, on the part of his
family, society and the State.
18
Art.20(1) Bill of Rights

19. Children’s Rights
States Parties shall take all appropriate legislative,
administrative, social and educational measures to
protect the child from all forms of physical or mental
violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, including
sexual abuse, while in the care of parent(s), legal
guardian(s) or any other person who has the care of
the child.
19
Art.19(1)
Convention on the Rights of the Child

20. Legislative History
1833 Slavery Abolition Act (UK)
Protection of Women and Girls Ordinance 1897
Female Domestic Service Ordinance 1923
International Slavery Convention 1926
Female Domestic Service (Amendment) Bill 1929
Juvenile Offenders Ordinance 1932
Protection of Women and Juveniles Ordinance 1951
20
‘Mui Tsai’ / Sex Trafficking

21. Child Protection
(1) Referral
(2) Investigation
(3) Risk Assessment
(4) Planning
21
The Theory
Take
protective
steps

22. Child Protection
(1) Initial Referral (to SWD/NGO)
(2) Initial Assessment (SWD/NGO)
(3) Social Enquiry & Risk Assessment
i. Crime = CAIU (Police)/CPSIT
ii. New case = FCPSU
iii. Existing case = SWD/NGO
(4) Initial welfare plan
(5) Multi Disciplinary Case Conference & Welfare Plan
(6) Services/Care
22
The Guide

23. Child Protection
Maintained by SWD, access to NGOs
Compiles statistics
Facilitates communication
23
Child Protection Registry

24. Child Protection
• Social Workers
• Doctors
• Nurses
• Child carer
• Domestic worker
24
Reporters
• Psychologists
• Lawyers
• Police
• Teachers
• Anyone else

25. Child Protection
• Intake social worker
• Do not promise a child you will keep it secret
• Refer to the NGO/SWD unit providing case work (or FCPSU)
• Take down information (written dated notes?)
• Assess:
i. Is there reason to believe there was child abuse
ii. Is there cause for concern that abuse occurred
iii. Is there urgent need for medical attention
• Police/FCPSU if serious physical abuse (14)/sexual abuse (17)
Initial Referral

26. Child Protection
• Forms the basis for the welfare plan
• Reason to believe a child has been abused?
• Take immediate protective action (CPO?)
• Collect background information
• Consider/plan interview process
• Risk of maltreatment in future
• Risk to siblings
• Psychological assessment
• ss.45 & 45A PCJO, Cap.213
Social Enquiry/Investigation

27. Child Protection
• Family composition
• Living environment
• Schooling/employment
• Family background
• Family relationships
• Child’s characteristics
Social Enquiry/Investigation
• History of child care/suspected
abuse
• Precipitating incidents
• Attitudes of parents/abusers
toward incidents and welfare plan
• Attitudes of the child towards
incident/welfare plan
• Other facts that may induce
stress

28. Child Protection
• ASAP or within 10 days of referral to investigating unit
• Prepare social enquiry report with initial welfare plan / each member should
prepare written report
• Consider involving child, and involve parents unless it would put children at
risk/undermine criminal investigation
• Professionals should communicate and share information promptly
• 2 parts: (i) professionals only, (ii) meeting with parents
• Discuss case nature, risk/needs assessment and welfare plan
• Report on implementation of welfare plan within 3 months
MDCC

29. Child Protection
Not in care: ‘Regular follow up’
In care: Case Review Meetings
29
Welfare Plans

30. Data Protection
Duties
• Data Protection Principle 3, PD(P)O, Cap 486
• Professional codes (doctors, social workers, psychologists)
• Breach of confidence (common law)
Exceptions:
• ss.58, 59 (prevention of crime, health of subject)
• Professional codes (doctors, social workers, psychologists)
• Public interest defence? (common law)
Tournier v National Provincial and Union Bank of England [1924] 1 KB 461
Saha v GMC [2009] EWHC 1907
30

31. Child Protection
Parental Consent
Care or Protection Order (s.34(1) PCJO,
Cap.213)
s.10(1) GMO, Cap.13
s.48A MCO, Cap.179
Wardship
31
Residential Care

32. Care or Protection Order
Who can apply?
i. Juvenile Court
ii. Director of Social Welfare
iii. Police officer
DLS representation for children
32
s.34(1) PCJO, Cap.213

33. Care or Protection Order
(a) who has been or is being assaulted, ill-
treated, neglected or sexually abused; or
(b) whose health, development or welfare has
been or is being neglected or avoidably
impaired; or
(c) whose health, development or welfare
appears likely to be neglected or avoidably
impaired; or
(d) who is beyond control, to the extent that harm
may be caused to him or to others,
33
s.34(2) PCJO, Cap. 213

34. Care or Protection Order
i. Appoint DSW the legal guardian
ii. Commit child to care of person/institution
iii. Order parent to enter into recognizance to
exercise proper care
iv. Place child under supervision
34
Powers

35. Emergency Care
i. ‘In need of care or protection’
ii. Place of refuge/other appropriate place
iii. Must apply for CPO within 48 hours
35
s. 34E, PCJO

36. Emergency Care
i. DSW has ‘reason to believe that any child…
is likely to be exposed to any moral or
physical danger’
ii. Any order for custody and control (including
removal and detention)
iii. Must apply for CPO within 48 hours
36
s. 35, PCJO

37. Residential Care
Foster care: 1,070 (86%)
Small group homes: 864 (92%)
Residential care homes: 1,708 (93%)
Total: 3,642
Average age: 10.8
Average time in care: 31 months
Examination of estimates of expenditure 2016-17: LWB(WW)0373
Examination of estimates of expenditure 2015-16: LWB(WW)0112
37
2015

38. Child Protection
• No statutory framework
• No responsibility to report
• No duty to protect
• Limited oversight
• Tight resources
38
The Reality

39. Criminal Liability
Sexual offences: Crimes Ordinance, Cap.200
Prevention of Child Pornography Ordinance,
Cap.579
(SJ v Man Kwong Choi [2008] 5 HKLRD 519)
Offences Against the Person Ordinance, Cap.212

40. Criminal Liability
s.27 OAPO, Cap.212
“wilfully assaults, ill-treats, neglects, abandons or
exposes such child…in a manner likely to cause
such child or young person unnecessary suffering or
injury to his health”
“shall be deemed to have neglected him… if he fails
to provide adequate food, clothing or lodging for the
child or young person”
SJ v Lam Lui Yin & Anor. [2007] 1 HKLRD 248

41. Criminal Procedure
• Burden of proof: Prosecution
• Standard: ‘beyond reasonable doubt’

42. Criminal Procedure
s.4 Evidence Ordinance, Cap.8 (unsworn/by deposition)
Video interviews: “Achieving Best
Evidence”/”Memorandum of Good Practice”
Part IIIA Criminal Procedure Ordinance, Cap.221
(evidence in chief by VRI, cross examination by video-
link)
Live Television Link and Video Recorded Evidence Rules,
Cap.221J
Rule 3: support person
42
Evidence

43. Criminal Procedure
• Ensure the first interview can
be used at trial (to reduce
trauma)
• Interview should take place
as soon as practicable
• Sympathetically designed
suites
• By trained SWO, police
officer, clinical psychologists
• Independent adult
43
Video Recorded Interviews
• Ensure suspect is not present
• Explain process and build a
rapport
• Let the child give a narrative
account
• Use open non-leading questions
• Close the interview with rapport
questions
• Check the child understands are
is not distressed

44. Civil Proceedings
• Care or Protection Orders (PCJO, Cap.213)
• Wardship
• Custody, care and control, access (GMO, Cap.13)
• Relocation (GMO, Cap.13)
• Child abduction
• Stay of proceedings (anti-suit injunction)
• Personal injury

45. Vicarious Liability
• JGE v. The Trustees of the Portsmouth Roman
Catholic Diocesan Trust [2012] EWCA Civ 938
• The Catholic Welfare Society v. the Institute of the
Brothers of the Christian Schools [2012] UKSC 56
• H v Lau Ka Yee Michael & Anor. [2006] 4 HKLRD 579
Religious Institutions
Schools
• Chan Kin Bun v Wong Sze Ming [2006] 3 HKLRD 208
• T v Kan Ki Leung [2002] 1 HKLRD 29

46. Family Proceedings
Custody, care and control
• Domestic violence: In re L (A Child) (Contact:
Domestic Violence) (CA) [2001] Fam 260
• Child abuse: LCSA v AP (FCMC 2295/2014, 8
June 2016); A v ABC (FCMC 8759/2010, 4
September 2012)

47. Experts
• Shaken baby syndrome: R v Lorraine Harris & Ors. [2005]
EWCA Crim 1980
• Judicial v Expert Roles: Re M (Care proceedings: Best
Evidence) [2007] EWCA Civ 589
• Leading questions: Re B (Sexual abuse: Expert's Report
[2000] 1 FLR 871
• Anatomically correct dolls: Re B (Sexual abuse: Expert's
Report [2000] 1 FLR 871
• Distinction between treating clinicians and expert witnesses:
GW & Anor v Oldham Metropolitan Borough Council &
Anor [2005] EWCA Civ 1247

48. Civil Proceedings
• Adopt guidance for criminal proceedings
• AS v TH (False Allegations of Abuse) 2016 EWHC
532 Fam
Video Evidence

49. 10 Commandments
1. Burden of proof on the party alleging abuse/neglect
2. Standard of proof is the ‘balance of probabilities’, with
regard to the inherent probabilities
A Solicitor v The Law Society [2008] HKCFA 15 at §84
CLL v SW (FCMC 10564/2009, 17 December 2012, §49)
3. Findings of fact must be based on evidence or
inferences properly drawn from evidence, not
speculation or suspicion
4. Evaluate the evidence in context of all other evidence
Re JS [2012] EWHC 1370

50. 10 Commandments
5. In serious NAI cases, weigh expert evidence against findings on other
evidence
6. Ensure experts stay within the bounds of their expertise
7. The evidence of parents/carers is of upmost importance, credibility and
reliability are key issues
8. Witnesses may lie for many reasons
9. Take into account cause of an injury may be unknown
10. The test regarding the pool of possible perpetrators is whether there is a
likelihood or a real possibility that he or she was the perpetrator
Re JS [2012] EWHC 1370

51. Children in Court
• Separate representation? (PDSL6)
• Meeting children? (PDSL5)
• Child witnesses: Re W (Children) (Abuse: Oral
Evidence) [2010] UKSC 12
• Children are not per se incompetent to be witnesses (s.3
Evidence Ordinance, Cap.8)
• Hearsay (unsworn) evidence is admissible in civil
proceedings (s.47 Evidence Ordinance, Cap.8)

52. Legal Aid
A minor must bring claim by next friend or
guardian ad litem (O.80, r.2)
Official solicitor may represent minor (Official
Solicitor Ordinance, Cap.416)
Application in representative or fiduciary
capacity: reg.6, Cap.91B
Maintenance of infant: reg.8, Cap.91B
Emergency certificate: re.7, Cap.91A
52

53. Topic 2:
Domestic Violence
Part 1: Introduction & Definitions
Part 2: DV Injunctions (DCRVO, Cap 189)
Part 3: Other remedies, Legal Aid

54. DV Part 1
Introduction,
Definitions

55. What is Domestic Violence?
What does it look like?
What are its effects?
How common is it?
Who are the victims?
Who are the perpetrators?

56. International Law & DV
Convention on the Elimination of Discrimination
against Women (CEDAW)
Committee on the Elimination of Discrimination
against Women (UNCEDAW)
General Recommendations (GRs)
Re DV: see GRs 12, 19
56

57. Other relevant
International Instruments
The Convention on the Rights of the Child
The International Covenant on Economic, Social and
Cultural Rights
The International Covenant on Civil and Political
Rights

58. International law definition
United Nations resolution on the Elimination of Domestic Violence Against Women
(A/RES/58/147, of 22 December 2003)
“1. Recognizes:
(a) That domestic violence is violence that occurs within the private sphere, generally between
individuals who are related through blood or intimacy;
(b) That domestic violence is one of the most common and least visible forms of violence against
women and that its consequences affect many areas of the lives of victims;
(c) That domestic violence can take many different forms, including physical, psychological and
sexual violence;
(d) That domestic violence is of public concern and requires States to take serious action to
protect victims and prevent domestic violence;
(e) That domestic violence can include economic deprivation and isolation and that such
conduct may cause imminent harm to the safety, health or well-being of women;”
58

59. SWD Guide (1)
“1.4 Intimate partner violence is a kind of domestic
violence. In using violence or the threat of
violence, physical or psychological harm is
inflicted with the effect of establishing control
by one individual over another. There are many
different forms of intimate partner violence, and a
person may be subjected to more than one form of
violence. …”
- Procedural Guide for Handling Intimate Partner
Violence Cases (Revised 2011)

60. SWD Guide (2)
(a) Physical violence: punching, slapping, biting, choking, kicking,
burning, throwing acid, assaulting with a weapon and setting
fire. Other forms of physical violence may include forcing
alcohol and / or drug use, or any dangerous or harmful use of
force or restraint, etc. There may be no obvious physical
injuries, or there may be bruises, cuts, broken bones, internal
injuries, disfigurement, disablement and even death;
(b) Sexual violence: coercing or attempting to coerce any sexual
contact or behaviour without consent. It includes marital rape,
all forms of sexual assault, or involvement in any undesirable
sexual acts, etc;
(c) Psychological abuse: Psychological abuse is defined as
recurrent aversive or coercive acts, intended to produce
emotional harm or threat of harm.

61. SWD Guide (3)
The recurrent aversive or coercive acts can be:
a) repeated verbal attacks
b) verbal harassment
c) deprivation of basic necessities
d) intimidation or verbal threats
e) threatening physical harm to self or others
f) forcing isolation
g) acts of domination
h) repeated invalidation

62. SWD Guide (4)
The emotional harm / threat of harm can be:
a) damages to the psychological well-being:
lowering of self-esteem
b) shame
c) anxiety and terror / fear
d) hopelessness and depression
e) mental health problems

63. UK Definition (1)
any incident or pattern of incidents of controlling,
coercive, threatening behaviour, violence or abuse
between those aged 16 or over who are, or have
been, intimate partners or family members
regardless of gender or sexuality. The abuse can
encompass, but is not limited to:
• psychological
• physical
• sexual
• financial
• emotional

64. UK Definition (2)
Controlling behaviour is a range of acts designed
to make a person subordinate and/or dependent by
isolating them from sources of support, exploiting
their resources and capacities for personal gain,
depriving them of the means needed for
independence, resistance and escape and regulating
their everyday behaviour.
Coercive behaviour is an act or a pattern of acts of
assault, threats, humiliation and intimidation or other
abuse that is used to harm, punish, or frighten their
victim.
https://www.gov.uk/guidance/domestic-violence-and-
abuse

65. Features
Escalation
Isolation
Low self-esteem
Lack of confidence
Feelings of guilt
Self-blaming
65

66. Prevalence
- K.L. Chan (2005), Study on Child Abuse and
Spouse Battering: Report on findings of
Household Survey
Physical assault, injury or sexual coercion against a
spouse: 21.7% of households
Physical violence against children: 29% of children
Far more than recorded!

67. Victims
Young and old
Same and opposite sex couples
Men and women
Transgender persons
Chinese and ethnic minorities
Hong Kong-born and new arrivals
Social classes and education levels
67

68. Part 2
DV Injunctions
DCRVO, Cap. 189

69. Remedies
DCRVO, Cap. 189
GMO, Cap. 13
Inherent jurisdiction
Civil claims
69

70. DCRVO Orders
Non molestation order
Ouster/re-entry order
Authorization of arrest
Counseling programme
Vary child custody/access
70

71. Parties
• Spouse/former spouse (s.3)
• Specified minor (s.3)
• ‘Cohabitation relationship’ current and
former (s.3B)
• Relatives (s.3A)

72. “Cohabitation Relationship”
(s.2) …a relationship between 2 persons (whether of the same sex or of the
opposite sex) who live together as a couple in an intimate relationship
To establish a “cohabitation relationship”…
Consider all the circumstances of the case, including (s.3B(2)):
(a) whether the parties are living together in the same household;
(b) whether the parties share the tasks and duties of their daily lives;
(c) whether there is stability and permanence in the relationship;
(d) the arrangement of sharing of expenses or financial support, and the degree of
financial dependence or interdependence, between the parties;
(e) whether there is a sexual relationship between the parties;
(f) whether the parties share the care and support of a specified minor;
(g) the parties’ reasons for living together, and the degree of mutual commitment to
a shared life;
(h) whether the parties conduct themselves towards friends, relatives or other
persons as parties to a cohabitation relationship, and whether the parties are so
treated by their friends and relatives or other persons.

73. Molestation: Definitions
• “To cause trouble; to vex; to annoy, to put to inconvenience”,
Davies LJ in Vaughan v Vaughan [1973] 3 All ER 449
• “Molest is a wide, plain word which I would be reluctant to
define or paraphrase. If I had to find one synonym for it, I would
select ‘pester’.” Stephenson LJ in Vaughan v Vaughan [1973]
3 All ER 449
• “… molestation may take place without the threat or use of
physical violence and still be serious and inimical to mental and
physical health”, Viscount Dilhorne in Davis v Johnson [1979]
AC 264
• “It applies to any conduct which can properly be regarded as
such a degree of harassment as to call for the intervention of
the court”, per Ormrod LJ in Horner v Horner [1982] Fam 90
73

74. Molestation: Examples
• Physical violence, threats, psychological
abuse, sexual abuse, financial abuse, verbal
abuse, bullying, nuisance calls/text
messages/emails, unwelcome visits,
following/watching/stalking, property damage,
publishing insulting material, improper reports
to authorities…
• Personally or by agents
74

75. Mandatory Counseling
Jurisdiction: ss 3(1A), 3A(5), and 3B(3), DCRVO
Anti-Violence Programme, 5 core concepts:
• Rapport building and ownership.
• Control and monitoring of violence.
• Self-understanding (learn, confront and challenge).
• Emotional control skills training.
• Relapse prevention skills.
12 x 2-3 hour sessions

76. Authorization of Arrest
Test:
• Has caused actual bodily harm (civil
standard!)
• Reasonably believes respondent is likely to
cause actual bodily harm
“any hurt or injury calculated to interfere with the
health or comfort of the victim” – R v Miller
[1954] 2 QB 282

77. Authorization of Arrest
Can attach at a later date
Applies to other injunctions (if married)
Served on Commissioner of Police by Registrar
(or solicitor if urgent)

78. Ouster and Re-entry
Ouster can cover ANYWHERE:
e.g. home, work, recreation or study
Re-entry covers residence/matrimonial home
Does not require proprietary interest in
the specified area
(but can still be frustrated)

79. Ouster and Re-entry
Consider:
• Conduct of the parties
• Needs and financial resources
• Needs of any specified minor
• All circumstances
Relatives, additionally:
• Legal/beneficial/contractual rights
• Impact on other family members
Needs of minor not necessarily paramount

80. Time Limits
Ouster, re-entry orders and authorizations of arrest
(s.6)
24 months

81. Procedure
• Notice the signs!
• Collect evidence (civil standard)
• ‘Free-standing’ injunction
• Usually District Court (s.4) (urgency)
• Inter partes by originating summons
• Ex parte by affidavit (PD 11.1 / full and frank!)
• Scott schedules
81

82. DV Part 3
Other remedies,
Legal Aid

83. Immediate Needs?
Protection / Medical Treatment
Shelter
Housing
Counselling
Legal aid
Prosecution
83

84. Who you gonna call?
84
Social workers…
FCPSU? IFSC?

85. Who you gonna call?
85
List of Victim Services from SWD:
http://www.swd.gov.hk/vs/english/welfare.html
FCSPUs, IFSCs, NGOs – across HK

86. Shelters
a. Christian Family Service Centre (for women – Serene
Court, tel: 2381 3311);
b. Po Leung Kuk (for women – Sunrise Court, Wai On
Home and Dawn Court, tel: 8100 1155);
c. Harmony House (for women – tel: 2522 0434);
d. Caritas, Family Crisis Support Centre (for both men
and women – tel: 18 288); and
e. Tung Wah (for both men and women – CEASE Crisis
Centre, tel: 18 281).
86

87. Other Avenues
Assault/battery
Private nuisance
Trespass
Criminal proceedings?
(see DOJ’s Guidelines for Prosecuting Domestic
Violence Cases)
87

88. Child Contact Centers
Typically used in cases where allegations
of domestic violence/abuse have been
raised
88
Safe, neutral, child-focussed venues for
supervised access, visits and changeovers

89. Topic 3
Family Court
procedures

90. Third Party Discovery
• Chan Yim Wah Wallace v New World First Ferry
Services Ltd [2015] HKEC 762
• Norwich Pharmacal Co v Customs and Excise
Commissioners [1974] AC 133
• s.60B PD(P)O, Cap.486
• s.42 HCO, O.24 rr.7A & 8

91. Practice Direction 12J (UK)
No HK Practice Direction on DV / Child
Abuse
Draft PD is being circulated and
considered for adoption based largely
on UK PD 12J
Until then, follow UK PD 12J

92. General Principles (PD 12J)
GMO s 3 – Best Interests = paramount
consideration
§4 – Presumption involvement of parents
will further the child's welfare, unless it
puts the child or other parent at risk
§5 – DV / abuse (or child or parent) is
harmful/puts children at risk

93. General Principles (PD 12J)
§6 – Consider DV/abuse at all stages (especially
CA) if raised by parties or SWD, and…
(i) identify factual and welfare issues
(ii) consider the nature of allegations, admissions,
evidence, and their relevance to the children’s
matters
(iii) give directions to enable trial of factual and
welfare issues ASAP
(iv) if DV/abuse is admitted or proven, impose care
arrangements to protect child/parent

94. General Principles (PD 12J)
§8 – Consent orders & DV / abuse
Court still duty bound to consider
best interests of the child

95. Before Children’s
Appointment (PD 12J)
§9 – Court must consider whether
information before it raises DV / abuse, if
so must raise issues at CA
§10 – Court must ensure arrangements for
safety of child/parties attending CA
hearings (if issues raised)

96. At Children’s Appointment
Directions
Fact Finding hearings (see PD12J, UK)
Social Investigation Reports
Experts (Psychologist) reports
Separate representation for child
(see PDSL6, §15(ix))
Meeting child (Abuse: see PDSL5, §3(i))
Evidence from third parties (e.g. police)

97. Fact Finding hearings
Not to be taken lightly – must be necessary,
proportionate and fair
Quasi-inquisitorial
Consider Scott Schedules
PTR
SIRs post-FF hearing
Re S (Care Proceedings: Split Hearing) [1996] 2
FLR 773)

98. Where DV / Abuse found
Court should:
(i) Seek information about support facilities
(ii) Consider treatment, intervention, advice as
precondition of access
(iii)Subsequent judgments should make clear
how its findings influenced its decisions

99. Contact Information
Azan Marwah
chambers@azanmarwah.com
Barrister, Gilt Chambers
Shaphan Marwah
sm@baskerville-chambers.com
Barrister, Baskerville Chambers
99

100. BUY THIS BOOK!
(thank you)