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2016 08 04 CPD on DV and Child Abuse - Final

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.

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Domestic Violence & Child Abuse 5 August 2016 Azan Marwah Shaphan Marwah 1 What family lawyers need to know
The Game Plan 1. Child Abuse and Neglect 2. Domestic Violence 3. Procedures in Family Court 2
Topic 1: Child Abuse and Neglect
Abuse and Neglect Child Protection Data Privacy Criminal Liability Civil Liability Legal Aid The Plan
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
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
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
Child Development • Physical development • Emotional and psychological development • Language development • Cognitive development • Social development • Development of independence and autonomy
Child Development Working together to safeguard children, March 2015
Types of Child Abuse (1) Physical Abuse (2) Sexual Abuse (3) Emotional/Psychological Abuse (4) Neglect 10
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
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)
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
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.
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)
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)
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)
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
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
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
Child Protection (1) Referral (2) Investigation (3) Risk Assessment (4) Planning 21 The Theory Take protective steps
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
Child Protection Maintained by SWD, access to NGOs Compiles statistics Facilitates communication 23 Child Protection Registry
Child Protection • Social Workers • Doctors • Nurses • Child carer • Domestic worker 24 Reporters • Psychologists • Lawyers • Police • Teachers • Anyone else
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
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
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
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
Child Protection Not in care: ‘Regular follow up’ In care: Case Review Meetings 29 Welfare Plans
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
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
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
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
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
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
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
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
Child Protection • No statutory framework • No responsibility to report • No duty to protect • Limited oversight • Tight resources 38 The Reality
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
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
Criminal Procedure • Burden of proof: Prosecution • Standard: ‘beyond reasonable doubt’
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
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
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
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
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)
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
Civil Proceedings • Adopt guidance for criminal proceedings • AS v TH (False Allegations of Abuse) 2016 EWHC 532 Fam Video Evidence
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
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
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)
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
Topic 2: Domestic Violence Part 1: Introduction & Definitions Part 2: DV Injunctions (DCRVO, Cap 189) Part 3: Other remedies, Legal Aid
DV Part 1 Introduction, Definitions
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?
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
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
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
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)
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.
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
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
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
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
Features Escalation Isolation Low self-esteem Lack of confidence Feelings of guilt Self-blaming 65
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!
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
Part 2 DV Injunctions DCRVO, Cap. 189
Remedies DCRVO, Cap. 189 GMO, Cap. 13 Inherent jurisdiction Civil claims 69
DCRVO Orders Non molestation order Ouster/re-entry order Authorization of arrest Counseling programme Vary child custody/access 70
Parties • Spouse/former spouse (s.3) • Specified minor (s.3) • ‘Cohabitation relationship’ current and former (s.3B) • Relatives (s.3A)
“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.
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
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
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
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
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)
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)
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
Time Limits Ouster, re-entry orders and authorizations of arrest (s.6) 24 months
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
DV Part 3 Other remedies, Legal Aid
Immediate Needs? Protection / Medical Treatment Shelter Housing Counselling Legal aid Prosecution 83
Who you gonna call? 84 Social workers… FCPSU? IFSC?
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
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
Other Avenues Assault/battery Private nuisance Trespass Criminal proceedings? (see DOJ’s Guidelines for Prosecuting Domestic Violence Cases) 87
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
Topic 3 Family Court procedures
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
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
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
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
General Principles (PD 12J) §8 – Consent orders & DV / abuse Court still duty bound to consider best interests of the child
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)
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)
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)
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
Contact Information Azan Marwah chambers@azanmarwah.com Barrister, Gilt Chambers Shaphan Marwah sm@baskerville-chambers.com Barrister, Baskerville Chambers 99
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2016 08 04 CPD on DV and Child Abuse - Final

  • 1.
    Domestic Violence & ChildAbuse 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.
  • 4.
    Abuse and Neglect ChildProtection 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 • Physicaldevelopment • Emotional and psychological development • Language development • Cognitive development • Social development • Development of independence and autonomy
  • 9.
    Child Development Working togetherto safeguard children, March 2015
  • 10.
    Types of ChildAbuse (1) Physical Abuse (2) Sexual Abuse (3) Emotional/Psychological Abuse (4) Neglect 10
  • 11.
    Neglect Failure to meetdevelopmental 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 developmentalneed 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 Comment13 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% ofadults 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% ofchildren 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 childshall 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 Partiesshall 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 SlaveryAbolition 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) InitialReferral (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 bySWD, access to NGOs Compiles statistics Facilitates communication 23 Child Protection Registry
  • 24.
    Child Protection • SocialWorkers • Doctors • Nurses • Child carer • Domestic worker 24 Reporters • Psychologists • Lawyers • Police • Teachers • Anyone else
  • 25.
    Child Protection • Intakesocial 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 • Formsthe 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 • Familycomposition • 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 • ASAPor 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 incare: ‘Regular follow up’ In care: Case Review Meetings 29 Welfare Plans
  • 30.
    Data Protection Duties • DataProtection 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 Careor 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 ProtectionOrder 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 ProtectionOrder (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 ProtectionOrder 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. ‘Inneed 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. DSWhas ‘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 • Nostatutory 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 • Burdenof proof: Prosecution • Standard: ‘beyond reasonable doubt’
  • 42.
    Criminal Procedure s.4 EvidenceOrdinance, 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 • Ensurethe 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 • Careor 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 • JGEv. 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, careand 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 babysyndrome: 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 • Adoptguidance for criminal proceedings • AS v TH (False Allegations of Abuse) 2016 EWHC 532 Fam Video Evidence
  • 49.
    10 Commandments 1. Burdenof 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. Inserious 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 minormust 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 Part1: Introduction & Definitions Part 2: DV Injunctions (DCRVO, Cap 189) Part 3: Other remedies, Legal Aid
  • 54.
  • 55.
    What is DomesticViolence? 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 TheConvention 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 UnitedNations 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) “1.4Intimate 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) Therecurrent 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) Theemotional 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) anyincident 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) Controllingbehaviour 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 ofconfidence 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 Sameand 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.
  • 69.
    Remedies DCRVO, Cap. 189 GMO,Cap. 13 Inherent jurisdiction Civil claims 69
  • 70.
    DCRVO Orders Non molestationorder 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) …arelationship 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 • “Tocause 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 • Physicalviolence, 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: ss3(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 Canattach 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 Oustercan 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-entryorders and authorizations of arrest (s.6) 24 months
  • 81.
    Procedure • Notice thesigns! • 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 Otherremedies, Legal Aid
  • 83.
    Immediate Needs? Protection /Medical Treatment Shelter Housing Counselling Legal aid Prosecution 83
  • 84.
    Who you gonnacall? 84 Social workers… FCPSU? IFSC?
  • 85.
    Who you gonnacall? 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 FamilyService 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 Criminalproceedings? (see DOJ’s Guidelines for Prosecuting Domestic Violence Cases) 87
  • 88.
    Child Contact Centers Typicallyused in cases where allegations of domestic violence/abuse have been raised 88 Safe, neutral, child-focussed venues for supervised access, visits and changeovers
  • 89.
  • 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 (PD12J) 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 (PD12J) §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 (PD12J) §8 – Consent orders & DV / abuse Court still duty bound to consider best interests of the child
  • 95.
    Before Children’s Appointment (PD12J) §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 FactFinding 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 Notto 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 [email protected] Barrister,Gilt Chambers Shaphan Marwah [email protected] Barrister, Baskerville Chambers 99
  • 100.