Review of law and administrative measures

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					                              Report by
                Inter-departmental Working Group on
              Review of law and administrative measures
     affecting divorcees and children who are eligible for alimony


                             Table of Content


Summary of Recommendations

Chapter 1 : Background

Chapter 2 : The Review

          Scope (Para. 2.1)
          Composition of Inter-departmental Working Group (Para. 2.2)
          Information gathering (Paras. 2.3 to 2.10)

Chapter 3 : The Present Situation

          Difficulties faced by divorcees and children (Paras. 3.1 to 3.2)
          Single-parent families receiving Comprehensive Social Security
           Assistance (Paras. 3.3 to 3.6)
          Relief to the problem of single-parents relying on CSSA (Paras.
           3.7 to 3.11)
          Pilot scheme on family mediation (Para. 3.12)

Chapter 4 : Law and Administrative Measures Examined

          Attachment of Income Orders (Paras. 4.1 to 4.12)
          Judgement summons (“JS”) (Paras. 4.13 to 4.24)
          Prohibition order (Paras. 4.25 to 4.28)
          Payment into court (Paras. 4.29 to 4.32)
          Surcharge (Para. 4.33)
          Addresses (Paras. 4.34 to 4.39)
          Suspension of driving licence (Para. 4.40)
          Transfer of information to credit reference agencies (Paras. 4.41
           to 4.42)
          Procedures in applying for CSSA and legal aid (Paras. 4.43 to to
           4.51)
          Counselling for single parents (Paras. 4.52 to 4.54)
          Publicity and public education (Paras. 4.55 to 4.58)

Chapter 5 : Maintenance board

          Views received (Paras. 5.1 to 5.3)
          Principles to consider (Paras. 5.4 to 5.6)
          Overseas experience (Paras. 5.7 to 5.24)
          Proposed functions of maintenance board (Paras. 5.25 to 5.26)
          Possible effect on CSSA expenditure (Paras. 5.27 to 5.39)
          Possible effect on divorcees and children (Paras. 5.40 to 5.48)
          Possible disadvantages (Para. 5.49)
          Conclusion (Para. 5.50)

Chapter 6 : Future Monitoring

          Monitoring body (Paras. 6.1 to 6.3)
          Statistics (Paras. 6.4 to 6.5)

Annexes
1. Membership list of Inter-departmental Working Group
2. Membership list of Sub-group to study procedures in processing
   applications for Comprehensive Social Security Assistance and legal
   aid
3. List of organisations and committees of Provisional District Boards
   which have provided views
4. Summary of findings of surveys on single-parent families receiving
   Comprehensive Social Security Assistance
5. Section 7 of Matrimonial Proceedings and Property Ordinance
6. Reasons given by survey respondents as to why they did not apply for
   maintenance, applied for only nominal amounts of maintenance or did
   not take legal actions to recover arrears.




                                     2
                     Summary of Recommendations


Attachment of Income Orders (“AIO”)

           One of the present criteria for making AIOs (i.e. the maintenance
payer must have defaulted in payment without reasonable excuse) is too
restrictive. The relevant Ordinances should be amended to empower the
court to issue an AIO at any stage (i.e. including during the
separation/divorce proceedings) either where both parties agree or the court
is not satisfied that the maintenance payer will pay diligently. The court
may issue an order on the application of either party or of its own volition.

2.        In order to reduce the time in processing AIO applications, the
relevant subsidiary legislation should be amended in order to give the court
discretion to dispense with certain steps in the court procedures and to
abridge the time limits provided for in the legislation if the court considers
such variation to be fair and reasonable in the particular circumstances of a
case.

Judgement summons

3.        Despite the difficulty in making personal service, the requirement
for the original judgement summons to be served personally should be
retained in order to avoid possible injustice to the judgement debtor.
However, the relevant legislation should be amended such that if the court
hearing has to be adjourned because the judgement debtor fails to attend,
the court is empowered to order another mode of delivery of the summons
for the adjourned hearing, instead of personal service, where it considers
fair and reasonable to do so.

4.       In addition, the relevant legislation should be amended by
introducing an additional enforcement method whereby in cases where the
court has reasonable ground to believe that an order for examination to be
served personally on a judgement debtor may be ineffective to secure his
attendance for examination, the court may make an arrest order for him to
be brought before the court and in addition, the court may make an order
prohibiting him from leaving Hong Kong.


                                      3
5.       The relevant subsidiary legislation should be amended such that
the court will have power to order the payment of arrears accrued up to the
date of hearing, instead of up to the date of application for judgement
summons at present. This would obviate the need for maintenance payees
to institute separate proceedings to recover the arrears accrued between
date of application and date of hearing.

6.       Maintenance payees who are not legally represented can apply to
the Judiciary for the service to be effected by the Court Bailiffs. Such
applications will normally be granted. A fee (at present $72 per document)
is payable for the service. It should be noted that where the address is
incorrect or the maintenance payer evades service, a Court Bailiff would
face the same difficulty as does a solicitor.

Prohibition order

7.       In regard to the suggestion made by some NGOs and lawyers that
a prohibition order (i.e. a court order prohibiting a person from leaving
Hong Kong) to facilitate the enforcement of maintenance arrears should be
valid for longer than three months, we note that the legislation which
empowers the Family Court to issue such an order (i.e. section 52E of the
District Court Ordinance Cap. 336) applies to the enforcement of all
judgement debts and not only maintenance arrears. We do not have
sufficient information at this stage to formulate a view on whether or not an
amendment to the mentioned section is justified. We shall study the
matter further.

Payment into court

8.       For those maintenance payees who do not wish to contact the
maintenance payers to collect payment, they can request the court to order
payments be made into their bank accounts. Such requests are usually
granted. We have heard the view that some maintenance payers are more
ready to pay diligently if they are required to pay to a public body. The
Judiciary Administrator has advised that the court can specify, in
appropriate cases, the mode of payment (including payment be made into
court) after taking into account the wishes of the parties involved and the
circumstances surrounding the cases concerned. It should be made clear,
however, that where a maintenance payer does not pay into court as ordered,

                                      4
it would not be appropriate for the court to initiate action to recover arrears.

Surcharge

9.     To deal with the problem of maintenance payers withholding
payments until shortly before court hearing, the relevant legislation should
be amended to empower the court to impose a surcharge where the
maintenance payer :-

   (a) has defaulted in payment without reasonable excuse; or
   (b) is in any way at fault (e.g. failing to explain to the maintenance
       payee why he cannot pay).

Address

10.      At present, a maintenance payer who fails to notify the
maintenance payee of a change in address commits an offence and is liable
to a fine at level 2 (i.e. up to $5,000). Some politicians and NGOs
consider the penalty to be too low. However, as there has never been any
prosecution for such an offence, there is no objective ground for proposing
an increase in penalty.

11.       Apparently, even some lawyers do not know where to report the
offence referred to in para. 10 above. The Police has advised that the
offence should be reported to the police station nearest to the maintenance
payer’s last known address. The Police’s advice should be passed onto
the relevant NGOs and professional bodies for information of their
members.

12.      Some lawyers do not know that if they require a maintenance
payer’s address for the purpose of taking legal action against him to recover
maintenance arrears, they can request the Immigration Department,
Transport Department and Housing Department to provide the address, if
they have it on their records. HAB has requested the Law Society to
inform its members of (a) such avenues to request addresses and (b) the
information to be included in the requests to the departments concerned.

13.    Some NGOs and politicians have suggested that maintenance
payees be allowed to obtain from Inland Revenue Department the

                                       5
addresses of maintenance payers. Finance Bureau has advised that the
existing secrecy provision in the Inland Revenue Ordinance cannot be
relaxed lest it might deter taxpayers from providing information and hence,
adversely affect the collection of revenue. The WG recommends not to
pursue the suggestion further.

Suspension of driving licence

14.     A measure adopted overseas is to suspend the driving licence of a
maintenance payer until he has settled maintenance arrears. The WG does
not recommend similar legislative provision in Hong Kong because :-

   (a) the measure is too draconian, considering that there is no direct link
       between the holding of a driving licence and the payment of
       maintenance; and

   (b) for a maintenance payer who is a driver by occupation, the
       suspension would adversely affect his earning power and in turn,
       his ability to settle the arrears.

Transfer of judgement debtor’s information to
credit reference agencies

15.      The US child support agency reports the names of defaulting
maintenance payers to credit reference bureaux. In Hong Kong, the Code
of Practice on Consumer Credit Data issued by the Privacy Commissioner
for Personal Data under the Personal Data (Privacy) Ordinance prohibits
credit reference agencies from collecting such information unless it is
contained in “official records that are publicly available”. The court’s
judgement in respect of maintenance arrears is not contained in such
records and therefore, credit reference agencies are not allowed to collect
such information. The WG recommends not to pursue the suggestion.

Procedures in applying for CSSA and legal aid

16.     A pilot scheme should be conducted in Social Welfare
Department’s Mongkok Field Unit and Legal Aid Department’s Kowloon
Branch Office, for four months, in order to test a set of revised procedures
which aim at :-

                                     6
      (a) reducing the CSSA payable to some single-parents who allege that
          legal actions to recover maintenance arrears cannot be taken
          because of lack of the maintenance payers’ addresses - instead of
          accepting the CSSA recipients’ words on their face value, SWD
          will try to obtain the addresses from Imm. D, TD and HD and then
          refer appropriate cases to LAD for recovery actions to be taken on
          behalf the CSSA recipients;

      (b) avoiding some CSSA recipients making futile legal aid
          applications – SWD will provide LAD with the information
          supplied by CSSA recipients, who do not have to visit LAD unless
          the latter decides there is a case for legal aid to be offered; and

      (c) minimising the time spent by single-parent CSSA recipients on
          applying for legal aid – based on information supplied by SWD,
          LAD will prepare the necessary documents and invite the
          applicants to sign the application form. In appropriate cases, the
          applicants may receive the offer of legal aid by visiting LAD only
          once at the appointed time.

Counselling for single parents

17.       SWD would streamline its referral procedures to enable single
parent to receive timely counselling and family services, including
counselling to support single parents to take recovery actions if they fail to
receive the alimony payable under maintenance orders.

Publicity and public education

18.         Publicity measures should be mounted to :-

       (a) drive home the message that a person is responsible for the
           maintenance of his child and ex-spouse even after divorce.
           Overseas experience suggests that such a social norm is probably
           a more effective means, than vigorous enforcement measures, to
           address the problem of default in maintenance payments; and

       (b) inform maintenance payees of their rights and what services are

                                       7
            available to them when they fail to receive maintenance
            payments.

19.       Subject to availability of funds, some community involvement
projects should be mounted in co-operation with NGOs which provide
services to single parents.

Maintenance Board

20.      We do not support the proposal to establish a maintenance board to
collect and enforce maintenance payments on behalf of the maintenance
payees. The reasons are as follows:-

      (a)     the Government’s intervention in a private dispute, to the
              extent of acting on behalf of a litigating party, is a departure
              from established principles and can be justified, if at all, only
              if it would bring clear and substantial benefits to the
              individuals concerned or the taxpayers;

      (b)     in New Zealand, Australia and UK, the establishment of Child
              Support Agencies (“CSA”) has resulted in the reduction of
              social security expenditure. The decrease is due, at least in
              part, to the higher rates of maintenance awarded by the CSAs
              compared with the awards previously made by the courts. In
              Hong Kong, there is no ground for changing the existing
              system whereby the amounts of maintenance are determined
              by the court having regard to the factors set out in section 7 of
              the Matrimonial Proceedings and Property Ordinance;

      (c)     the paper researches conducted by HAB and LegCo
              Secretariat have not come up with any information on whether
              or not the establishment of CSAs overseas has increased the
              collection rate of maintenance. Even assuming that it does,
              the increase is probably due to the wide powers conferred on
              the CSAs. Some of the powers are draconian while others
              are, in Hong Kong, vested in the court. We do not consider it
              appropriate to confer such powers on an executive authority
              for collecting and enforcing private debts;


                                       8
      (d)   for those maintenance payees who do not wish to contact the
            maintenance payers personally to collect payments, they can
            request the court to order that payments be made into their
            bank account. The court usually grants such requests. On
            the other hand, when it comes to enforcement, the
            establishment of the proposed board does not mean that the
            maintenance payees would not have to be involved in the legal
            proceedings to sue for arrears. For example, they would still
            have to confirm to the board that the maintenance payers have
            not made payments to them direct, visit the board to sign
            affidavits and attend hearings in court;

      (e)   we have recommended a wide range of improvements to the
            existing system and will continue to consider what further
            improvements can be made. The proposed maintenance
            board would be unlikely to bring, to the taxpayers or
            maintenance payees, any significant benefits over and above
            those which can be achieved by improving the existing system;
            and

      (f)   even if the proposed maintenance board operates to its
            maximum efficiency, there will still be a significant number of
            cases where maintenance cannot be collected because the
            maintenance payers either cannot be located or cannot afford
            to pay. The maintenance payees concerned may shift their
            blame from the maintenance payers to the board.

Future monitoring

21.        The existing Inter-departmental Working Group should continue
to exist in order to monitor the implementation of the legislation affecting
maintenance payees and address the difficulties encountered by the persons
affected.

22.      As a separate exercise, a study should be conducted with a view
to improving the existing information systems of the departments
concerned in order to generate information and statistics required for
evaluating and formulating policies on maintenance.


                                     9
                              Report by
                  Inter-departmental Working Group
                                  on
              Review of law and administrative measures
     affecting divorcees and children who are eligible for alimony


                        Chapter 1 : Background

         During the last four years or so, the Administration has received
reports about the difficulties encountered by divorcees – mainly women –
in collecting maintenance payments. Some complain that they were
abused by their ex-spouses when trying to collect payments. The court
procedures to recover arrears are said to be cumbersome and
time-consuming and in many cases, no recovery actions can be taken
because the maintenance payers disappear without leaving any contact
addresses. The difficulties, it is said, have led many divorcees to refrain
from applying for maintenance payments or from taking enforcement
proceedings for recovery of arrears of maintenance and instead, to rely on
Comprehensive Social Security Assistance (“CSSA”).

1.2     To address the difficulties, the Legislative Council passed a motion
on 26 February 1997 urging the Government to establish a maintenance
board to collect and enforce maintenance payments on behalf of the
divorcees. The then Secretary for Home Affairs mentioned during the
debate that improvements to legislative and administrative measures had
been and would be adopted. He concluded by saying that before the
improvements had been implemented and their effectiveness evaluated, we
should not contemplate any fundamental change to the existing
administrative machinery.

1.3    The legislative changes mentioned in the debate were enacted in
June 1997 vide the Marriage and Children (Miscellaneous Amendments)
Ordinance. The new measures introduced by the Ordinance included : -

    (a) empowering the court to order the sale of matrimonial properties
        where this was necessary for equitable division of the properties;



                                     10
    (b) empowering the court to order payment of maintenance for the
        benefit of children aged 18 or above if the children were in
        full-time education or had special needs;

    (c) requiring maintenance payers to notify maintenance payees of
        changes in addresses; and

    (d) empowering the court to issue Attachment of Income Orders
        (“AIO”) where the maintenance payers had defaulted in payment
        without reasonable excuse. An AIO required the maintenance
        payer's “income source” (e.g. his employer or his tenant) to deduct
        from his income and pay the deduction direct to the maintenance
        payee.

1.4      All measures except (d) were put into effect in July 1997. Owing
to the need to draft the AIO Rules (which provided for the relevant court
procedures), the AIO scheme did not come into operation until April 1998.
A committee set up by the Provisional Legislative Council to study the
procedures urged the Government to establish a maintenance board and
revise the legislation concerning AIO and other matters relating to
maintenance. Home Affairs Bureau undertook to conduct a review after
the AIO had been in operation for twelve months.




                                    11
                        Chapter 2 : The Review

Scope

2.1     The review started in April 1999. It covered the law and
administrative measures affecting divorcees and children eligible for
alimony. It included an evaluation of the proposal to establish a
maintenance board.

Composition of Inter-departmental Working Group

2.2      An Inter-departmental Working Group (“WG”), chaired by a
Deputy Secretary for Home Affairs and comprising representatives of
Home Affairs Bureau, Health and Welfare Bureau, Department of Justice,
Social Welfare Department and Legal Aid Department was set up in April
1999 to conduct the review; the Judiciary Administrator’s representative
attended as observer. The WG’s membership list is at Annex 1. In
addition, a Sub-group was convened to study synchronisation of the
procedures in processing applications for Comprehensive Social Security
Assistance (“CSSA”) and legal aid. The membership list of the
Sub-group is at Annex 2.

Information gathering

2.3     Views were sought from about 30 NGOs and professional bodies,
of which about 20 have responded. A list of the organisations which have
responded is at Annex 3. At the invitation of the committees of six
Provisional District Boards (“PDB”), Home Affairs Bureau’s representative
attended their meetings - please see Annex 3 for the list of PDB committees
concerned.

2.4      We commissioned a market research firm, AC Nielsen, to conduct
an opinion survey on single-parent families receiving CSSA with a view to
finding out :-

    (a) the number of CSSA recipients who were single parents because of
        separation or divorce;



                                    12
    (b) for families referred to in (a) who did not apply for maintenance or
        applied for only nominal amounts, the reasons why they did not
        apply for maintenance at non-nominal amounts; and

    (c) for those who failed to receive full payments according to
        maintenance orders but did not take legal actions to recover arrears,
        the reasons why they did not institute legal proceedings.

A summary of the survey findings is at Annex 4.

2.5      The survey covered only single-parent families receiving CSSA
because there is not any sampling frame which would render it practicable
to tap the views of single-parent families who are not CSSA recipients. In
this connection, we considered the feasibility of conducting a survey with
samples to be taken from (a) the general population or (b) the persons
taking part in divorce proceedings.

2.6     On (a), the professional statistical advice given to us was that a
very large number of respondents, to be selected at random from the
general population, would have to be contacted in order to conduct
successful interviews with an adequate number of respondents (say, 1000)
who were divorced or separated. Such a survey was estimated to cost
over $1 million and still, would have an unacceptable margin of error.

2.7      On (b), our intention was to use the Judiciary’s records as our
sampling frame. However, Judiciary Administrator indicated it could
release the necessary personal data to us only with the consent of the data
subjects. The professional statistical advice available to us was that a
survey with self-selected respondents would not be scientific.

2.8     We are conscious that the findings on single-parent families
receiving CSSA may not be representative of all divorcees and separated
persons in Hong Kong. The findings may amount to an over-estimation
of the prevalence of the problem concerning maintenance arrears.
However, given the community’s sustained concerns about the problem, we
would rather err on over-estimating than under-estimating the size of the
problem. Furthermore, the survey would enable us to assess the problem
of divorcees’ having to rely on CSSA as a result of failing to receive
maintenance.

                                     13
2.9      In considering the proposal to establish a maintenance board in
Hong Kong, we had regard to three reports, prepared after paper researches,
on the child support agencies overseas. The three reports were:-

    (a) a report prepared by the then Home Affairs Branch in November
        1996. The paper covered the child support agencies in Australia,
        New Zealand, United Kingdom and Ontario of Canada;

    (b) a report prepared by the Legislative Council Secretariat in
        December 1998 on child support agencies in United States,
        Australia, New Zealand and United Kingdom; and

    (c) a supplementary report prepared by the Legislative Council
        Secretariat in April 1999 on the agencies mentioned in (b) above.

2.10     We studied also the views expressed by Legislative Council
Members at the three meetings of the Panel of Home Affairs to discuss the
mentioned papers and also, at the motion debates held on 26 February 1997
and 8 December 1999. We noted that in both debates, the motion to
establish an intermediary body to collect and enforce maintenance
payments was passed.




                                    14
                    Chapter 3 : The Present Situation

Difficulties faced by divorcees and children

3.1       Based on the information provided to us by various sources, the
difficulties faced by divorcees in collecting and enforcing maintenance are
as follows:-

     (a) they are subject to verbal abuse or even physical violence when
         they contact the maintenance payers to ask for payments;

     (b) some maintenance payers simply disappear without leaving any
         contact address. Without the address, no effective enforcement
         action can be taken;

     (c) even where the required addresses are available, the maintenance
         payers may evade service of the judgement summons (“JS”). The
         JS is the most common method to enforce a maintenance order.
         However, unless personal service of a JS has been effected upon a
         maintenance payer, the court cannot make the relevant orders
         against him. Furthermore, the JS proceedings and other court
         procedures to sue for arrears are cumbersome and
         time-consuming;

     (d) a ploy adopted by some maintenance payers is to withhold
         payment until shortly before the scheduled court hearings.
         However, after paying for a few months, they default again and the
         maintenance payees have to spend time and effort in instituting
         legal proceedings time and again;

     (e) for those who apply for CSSA and legal aid as a result of failure to
         receive payments, they have to make several visits to SWD and
         LAD before their applications are approved. Also, it is not
         uncommon for them to be told, after filing applications for legal
         aid, that their applications cannot be approved; and

     (f) the divorcees have to comply with the legal formalities, attend
         court hearings, apply for CSSA and legal aid etc. at the expense of
         the time they can give to the care of their children. For those who

                                     15
        are employed, the need for them to be absent from work would be
        a negative factor in the eyes of their employers.

3.2       It is also asserted that in view of the difficulties, some divorcees
rely on CSSA and refrain from applying for maintenance orders or
instituting legal actions to recover arrears. We need to address these
difficulties.

Single-parent families receiving CSSA

3.3      The number of single-parent families receiving CSSA has been
increasing rapidly during the last few years, as follows:-

        As at             No of cases       Increase over preceding year

       31.12.95             8 268
       31.12.96            12 340               49%
       31.12.97            15 849               28%
       31.12.98            24 595               55%
       31.12.99            25 476                4%

3.4      The results of the survey referred to in para. 2.4, which was
conducted in September and October 1999, show that about 46% of the
single-parent CSSA recipients become single parents because of divorce or
separation.

3.5     The survey shows that for 1 001 of such single-parents who are
receiving CSSA –

            439 (44%) did not apply for maintenance;
            78 (8%) applied but failed;
            89 (9%) had applications which were being processed as at the
             date of interview;
            197 (20%) were awarded only nominal amounts (e.g. $1 per
             annum);
            184 (18%) were awarded non-nominal maintenance. Of
             these, 66 (36% of 184) received payments in full during the
             past year, and 112 (61% of 184) received partial payments or
             did not receive any at all. As regards the remaining 6 (3% of

                                      16
             184), the payments payable to them were not due as at the date
             of interview. Of those who did not receive payments in full,
             80 (71% of 112) took legal actions to recover arrears; and
            14 (1%) said that they did not know the position of the
             maintenance orders they had been granted.

3.6      The total amount of CSSA paid to single-parent families owing to
default on maintenance was estimated to be $43 million per annum.

Relief to the problem of single-parents relying on CSSA

3.7      The court has the power, during divorce proceedings, to order the
payment of maintenance even if neither party applies for it. We observe
that since early 1999, where neither party has applied for maintenance (or
one party has applied for only a nominal amount) but one of the parties is
receiving CSSA, the Family Court may require the party to explain why
he/she does not claim maintenance.

3.8      To address the problem of single-parents having to rely on CSSA
as a result of failing to receive maintenance, SWD introduced new
procedures in August 1998. Under the new procedures, in processing
CSSA applications involving divorced women who have not received
alimony or whose ex-spouses have defaulted in maintenance payments,
SWD would ask the applicants to declare on an undertaking form their
intention to file a claim for maintenance/enforcement of the maintenance
order before CSSA payments can be made to them. SWD will not stop or
reduce CSSA payment until the CSSA recipients have successfully
recovered the alimony. Upon case review (usually six months after the
time of application), SWD staff would check the progress of the case with
LAD or court as appropriate.

3.9      In cases where the recipients fail to honour the undertaking to take
legal action to claim or recover alimony, SWD will stop payment of CSSA
to the recipients and the payments already made to the recipients will be
deemed as overpayments. However, recipients may be exempted from the
requirement if they have acceptable reasons. The following are generally
considered as acceptable reasons:-

     (a) there is no way to locate the ex-spouse;

                                     17
    (b) there is well-founded fear of an ex-spouse who has record of
        violent behaviour; and

    (c) there is full understanding that the ex-spouse has no financial
        means to comply with a maintenance order, e.g. the ex-spouse is
        receiving CSSA or bankrupt.

3.10     It is interesting to note that since the introduction of the new
procedures, the increase in single-parent CSSA recipients has slowed down
drastically, as shown by the following figures :-

        August 1998          20 248 (35% increase over August 1997)
        March 2000           25 146 (2% decrease over March 1999)

However, we do not have any basis for assessing to what extent the slowing
down is due to SWD’s new procedure or the Family Court’s latest practice.
SWD suggests that the decline in the single-parent cases is more the result
of its 1998 CSSA Review on “Support for Self-reliance”, which aimed at
removing the disincentives to work of the CSSA scheme for the
able-bodied recipients and tightened the eligibility criteria for such
recipients.

3.11     It is in practice very difficult for SWD to implement the
requirement for a CSSA recipient to re-apply for a maintenance order after
she has given up claiming the maintenance or got a nominal maintenance
order. This is because the court will not vary an existing order unless
there are material changes in circumstances since the divorce proceedings.
Where the CSSA recipient has not applied for or not been granted nominal
maintenance at the first instance, the court will not allow her to claim
maintenance for herself unless there are good reasons.

Pilot scheme on family mediation

3.12    The Judiciary launched a pilot scheme on 2 May 2000 to provide
family mediation service to couples who intend to separate or divorce.
Couples who agree to use the service may reach agreements on matters
such as the amount of maintenance payments and custody of children and
submit them to the court for orders to be made accordingly. The
arrangement might reduce the possible dissatisfaction about the court

                                    18
orders and hence, the probability of default in maintenance payments.




                                    19
       Chapter 4 : Law and Administrative Measures Examined

Attachment of Income Orders

Background

4.1      Though the AIO, as a device to recover maintenance payments,
attracted public attention only in the last couple of years, it has in fact been
in existence for a long, long time. Before 1997, it was provided for in the
now repealed section 20 of Guardianship of Minors Ordinance (Cap. 13)
(“GMO”) and section 12 of the now repealed Affiliation Proceedings
Ordinance (Cap. 183).

4.2     To the best of our knowledge, the provisions were seldom invoked
by maintenance payees.       The reason, we believe, was that most
maintenance orders were made not under the mentioned Ordinances, but
under the Matrimonial Proceedings and Property Ordinance (Cap. 192)
(“MPPO”), which did not contain a similar provision.

4.3      Following the enactment of the Marriage and Children
(Miscellaneous Amendments) Ordinance in June 1997, AIOs can now be
made in respect of all maintenance orders made under the GMO, MPPO
and the Separation and Maintenance Orders Ordinance (Cap. 16). The
Attachment of Income Orders Rules were made by the Chief Justice in
March 1998 to stipulate the relevant court procedures. The Rules took
effect in April 1998 after minor amendments were made by the Provisional
Legislative Council.

Features of the AIO Scheme

4.4      The salient features of the Scheme are as follows :-

      (a) the court may make an order to attach a maintenance payer’s
          income (i.e. to require an “income source”, such as an employer,
          to deduct from the income and pay the deductions to the
          maintenance payee);

      (b) the court may make such an order only if two conditions are
          satisfied: first, the maintenance payer has defaulted in payment

                                       20
         without reasonable excuse and second, he has “any income
         capable of being attached”;

      (c) after a maintenance payee has filed an application for AIO, the
          maintenance payer will be required to file a statement of means
          detailing his incomes and the relevant “income source” will be
          required to verify the statement of means. The “income source”,
          if he so wishes, may attend the court hearing in order to address
          the court on any matter relating to his verification; and

      (d) the “income source” may recover from the maintenance payer the
          clerical and administrative costs in complying with the AIO.

Default without reasonable excuse

4.5       Under the former AIO legislation mentioned in para. 4.1, the court
might issue an AIO where a maintenance payer had defaulted in payment
without reasonable excuse. The condition was retained in the present
legislation for the following reasons :-

      (a) unless a maintenance payer has shown reluctance to discharge his
          responsibility, it would be unreasonable to disclose his personal
          matter (i.e. he has to pay maintenance) to a third party;

      (b) the condition might have a deterrent effect in that a maintenance
          payer, out of concern that his employer may become aware of or
          even have to be involved in settling-his personal disputes, will
          probably think twice when he intends to default in payment; and

      (c) the compliance with an AIO would cause work and
          inconvenience to the “income source”.             To avoid the
          community’s possible resistance to the scheme, we should
          confine the orders to those cases where the maintenance payees
          have experienced difficulties in receiving payments.

Review

4.6     In the 24 months from April 1998 to March 2000, the Judiciary
received 44 applications for AIO, though there were some 785 judgement

                                     21
summonses issued for maintenance arrears during the same period. Of the
57 applications, only 18 were approved while the others were either being
processed (35 cases), withdrawn (3 cases) or dismissed (1 case). For the
approved cases, some took as long as six months.

4.7      We have heard the comment that the Scheme has not been
effective in solving the problem of maintenance arrears. Our response is
that the Administration has never claimed the Scheme to be a complete
solution of the problem. It is, however, an useful additional remedy to the
existing legal remedies in that in appropriate cases, it will enable the
maintenance payees not only to receive the arrears accrued but also to
secure the payment of future instalments.

4.8      We agree with the observation of some respondents that the AIO
scheme cannot be invoked where a maintenance payer is self-employed and
does not have “any income capable of being attached”. This is, however,
an intrinsic feature of the scheme and no improvement can be made.

4.9      Apart from the fact that the maintenance payer must have an
“income capable of being attached”, another factor which has limited the
application of the scheme is the requirement that he must have failed,
without reasonable excuse, to pay. A reason for the requirement is as
stated in para. 4.5(b). However, the feedback received by us suggests that
the envisaged deterrent effect has not materialised.

4.10     In the light of comments received, in particular those from the Bar
Association, we have considered whether the requirement of default
without reasonable excuse should be abolished.             For the reasons
mentioned in paras. 4.5(a) and (c) above, we do not recommend a complete
abolition of the requirement. Instead, we recommend that it be relaxed.
We recommend that the court be empowered to issue an AIO at any
stage (i.e. including during the separation/divorce proceedings) either
where both parties agree for such an order to be made or the court is
not satisfied that the maintenance payer would pay diligently. The
court may make an AIO either on its own motion or on the application
of either party.

4.11     One of the causes of the long time taken to approve some AIO
applications is that the scheme is new and therefore, most persons involved

                                     22
- especially the income sources - were not familiar with the procedures and
time limit. Another cause is that the detailed procedures set out in the
AIO Rules give the court little flexibility. We recommend that the
Rules be amended in order to give the court discretion to dispense with
certain steps and to abridge the time limits provided for in the Rules if
the court considers such variation to be fair and reasonable in the
particular circumstances of a case.

4.12    We also accept the criticism made by some NGOs that there was
inadequate publicity for the Scheme. Though HAB did distribute
information booklets fairly widely in mid-1998, there is room for
improving the publicity. This will be dealt with in paras. 4.56 - 4.58
below.

Judgement summons (“JS”)

Background

4.13     The JS is the most common device to sue for arrears of
maintenance. It requires the maintenance payer to appear in court and
explain why he does not pay. Unless he has a reasonable excuse for not
paying (in which case the court may order a variation of the original
maintenance order), otherwise the court may (a) order him to settle the
arrears by instalments or (b) commit him to prison until he has paid the
arrears or (c) suspend the committal order on condition that he pays the
arrears within a specified period. During the last five years, the number of
JS issued each year was about 350.

4.14     The device has not been as effective as it should be owing to the
service requirement, laid down in rule 87 of the Matrimonial Causes Rules
Cap. 179 (applicable to the enforcement of maintenance orders issued
under the MPPO) and rule 61B of the District Court Civil Procedure
(General) Rules Cap. 336 (applicable to maintenance orders issued under
the Separation and Maintenance Orders Cap. 16, Maintenance Orders
(Reciprocal Enforcement Ordinance) Cap. 183 and GMO). The effects of
the rules are that :-

    (a) a judgement summons “shall be served on the judgement debtor
        personally” (sub-rule (4) of rule 87);

                                     23
     (b) where the judgement debtor fails to attend the court hearing, the
         court may “adjourn the summons to a specified time on a specified
         day and order the judgement debtor to attend at that time on that
         day” (“an Order to Attend”) (sub-rule (5)(b));

     (c) the summons for the adjourned hearing shall be served on the
         judgement debtor personally as required by sub-rule (4); and

     (d) where the judgement debtor fails to attend the adjourned hearing
         after being personally served with an Order to Attend or he attends
         but fails to show cause why an order of commitment should not be
         made against him, the court may make an order for the
         commitment of the judgement debtor.

Difficulties

4.15     Where the JS has been served personally on a judgement debtor
and he attends court as summonsed, the court will cross-examine him and
consider the evidence to decide whether he has failed to pay without
reasonable excuse and whether any of the orders mentioned in para. 4.13
above should be made. If he fails to attend court after having been served
the JS personally, the court will grant an order with a penal notice (“Order
to Attend”) requiring him to attend court. If he does not attend court after
having been served an Order to Attend, the court will issue a warrant to
arrest him and bring him before court to explain why he should not be
committed to prison for failure to attend court. Like the JS, the Order to
Attend also has to be served personally on the judgement debtor.

4.16      The feedback we have received is that even where a maintenance
payee does have the maintenance payer’s up-to-date address, it is often
difficult to serve the summons on the latter personally since he may try to
evade service. The difficulty is multiplied by the requirement to effect
personal service of the summons (or Order to Attend) for a second time if
he does not appear in court after receiving the first summons.

4.17    The Judiciary does not keep statistics on the number of judgement
summonses which cannot proceed because of the failure to serve them on
the judgement debtors. To quantify the problem, special records were

                                     24
kept of the summonses in connection with maintenance arrears for the
months of October and November 1999. The records show that out of 69
cases where hearings were scheduled, 20 hearings were adjourned as a
result of the judgement debtors failing to appear in court and in addition,
adjourned hearing in five cases had to be further adjourned because the
adjournment orders could not be served on the judgement debtors
personally. The figures do show that the problem of service of
summonses is a serious one. There is, therefore, a need to relax the
service requirements.

Review

4.18      We have considered:

       (a) dispensing with the requirement for judgement summonses to be
           served personally and replacing it with a requirement that it be
           served by registered mail on the judgement debtor’s last known
           address; and

       (b) empowering the court, where the judgement debtor fails to appear
           in court after the summons has been served by registered mail, to
           make an order for him to be arrested, an order prohibiting his
           departure from Hong Kong or both.

4.19 Such an arrangement would be an effective solution of the problem.
However, it is draconian and would do injustice to those judgement debtors
who genuinely do not receive the summonses.              We recommend,
therefore, that the requirement for the original judgement summonses
to be served personally should be retained but consideration should be
given to relaxing the service requirement in respect of the summonses
for adjourned hearings. In this regard, we have considered the
following options:-

         Option A : the requirement for a second service will be dispensed
         with and the court may issue an order of commitment if the
         judgement debtor fails to appear in court after receiving the original
         summons;

         Option B : the requirement for a second service is retained but the

                                       25
       court will be empowered to order another mode of delivery, instead
       of personal service, where it considers it fair and reasonable to do
       so (e.g. there is evidence that the judgement debtor has tried to
       evade the service of the judgement summons);

       Option C : the requirement for a second service is retained but
       instead of personal service, the judgement creditor (i.e. the
       maintenance payee) shall be allowed to deliver the order/summons
       for the adjourned hearing to the judgement debtor’s last known
       address (which in practice will probably be the address where he
       was served the original summons).

4.20     We recommend Option B. In doing so, we have taken account
of the following considerations:-

      (a) from the legal policy point of view, it is desirable to keep to the
          minimum the difference between the judgement summons
          procedures applicable to judgement debtors owing maintenance
          and those applicable to other judgement debtors; and

      (b) Option B enables the court to decide what is fair and reasonable
          in a particular case and therefore, avoids the risk of any injustice
          being done to any judgement debtor.

4.21    We believe, however, that Option B alone would have only limited
effect in addressing the service difficulties mentioned earlier. We
recommend that in addition to Option B, the Matrimonial Causes
Rules and District Court Civil Procedure (General) Rules be amended
to include provisions similar to rule 1 in Order 49B of the Rules of the
High Court Cap. 4, that is -

    (a) the judgment creditor may make an application for an order
        that the judgment debtor be examined; and

    (b) where the court has reasonable ground to believe that an order
        to appear before the court at the appointed time for
        examination to be served personally on a judgement debtor
        may be ineffective to secure his attendance for examination, the
        court may make an arrest order for him to be brought before

                                     26
        the court and in addition, the court may make an order
        prohibiting him from leaving Hong Kong.

4.22     There is another problem with the existing judgement summons
procedures. The relevant rules and forms (i.e. rule 87 of, and Forms 22
and 23 in the Appendix to, Matrimonial Causes Rules; rule 61B of the
District Court Civil Procedure (General) Rules; and Forms 19 and 20 in
Schedule 2 to the District Court Civil Procedure (Form) Rules) are so
worded at present that the court has power to order the payment of arrears
accrued up to the date of application for judgement summons only, while
the additional arrears accrued from that date up to the date of hearing will
have to be the subject of another judgement summons. This has caused
unnecessary inconvenience to the court and litigating parties. We note
that D of J has already drafted amendments to the rules in order to
enable the court to order the payment of all arrears accrued up to the
date of hearing.

4.23     Apart from the legislation, we have examined also the
administrative arrangement concerning the service of judgement summons.
For maintenance payees who apply for judgement summonses with legal
representation, the solicitors concerned will arrange for the summonses to
be served on the maintenance payers. Maintenance payees who are not
legally represented will have to make their own arrangements for the
service and we have received suggestions that they be provided with
assistance on this aspect.

4.24     We recommend, and the Judiciary Administrator agrees, that
maintenance payees who apply for judgement summonses without
legal representation may apply for the summonses to be served by
Court Bailiffs. The Court Bailiffs will provide the requested service at a
fee (at present, $72 per document), the payment of which may be reduced,
remitted or deferred by the Registrar, District Court as he may think fit in
any particular case. It should be noted, though, that where the address
is incorrect or the maintenance payer purposely evades service, a
Court Bailiff will encounter the same difficulty in serving the
document as experienced by a solicitor.




                                     27
Prohibition order

4.25     To facilitate securing the payment of maintenance as specified in a
maintenance order, a maintenance payee may apply to court for a
prohibition order to prohibit a maintenance payer from leaving Hong Kong.
A person who has been served or otherwise informed of such an order but
attempts to leave Hong Kong in contravention of the order may be arrested
by any immigration officer, police officer or bailiff. The prohibition order
can be used to prevent a maintenance payer from quitting Hong Kong and
thus evading his responsibility to pay maintenance. It is also a device to
help secure a maintenance payer’s attendance in court as required by a
judgement summons.

4.26    A limitation of a prohibition order is that it is valid for three
months only. Some NGOs and lawyers have suggested that the validity
period should be extended in order to save the maintenance payees the
inconvenience of having to apply for fresh prohibition orders.

4.27     The Family Court derives its power to issue prohibition orders
from section 52E of the District Court Ordinance Cap. 336. The section
provides that such an order shall lapse on the expiry of one month but the
court may, on the application of the judgement creditor, extend or renew
the order for a period of two months (i.e. the initial period plus the renewed
or extended period shall not exceed a total of three months). A
maintenance payee who wishes to prevent a maintenance payer from
leaving Hong Kong after the lapse of a prohibition order will have to apply
to court for a fresh order.

4.28     The validity period stipulated in section 52E applies to prohibition
orders for enforcement of all judgement debts and civil claims and not only
those for enforcement of maintenance orders. An amendment to the
provision, therefore, would have wide implications and at this juncture, we
do not have sufficient information to formulate a view, one way or the other,
on whether such an amendment is justified. Our preliminary observation
is that the validity period of a prohibition order must not be longer than
necessary for the purpose of securing the enforcement of a judgement or
civil claim against him. If the existing period of three months is
considered to be not long enough for this purpose, it is necessary to find an
objective basis to determine what the revised period should be. We

                                      28
recommend that the matter be studied further.

Payment into court

4.29     Many maintenance payees have expressed the view that they do
not wish to have any personal contact with the maintenance payers in
collecting payments, lest they may be abused or subject to violence during
the contacts. In fact, it is very common for maintenance payees to request
the court to order that payments be made into their bank accounts, thus
obviating any physical contact with the maintenance payers over collection
of maintenance. The court normally grants such requests.

4.30     Some maintenance payees believe that if the maintenance payers
are required to pay to a public body instead of into bank accounts, they will
be more ready to pay diligently and the incidence of default will reduce.
We doubt whether a requirement to pay to a public body would indeed have
such an effect. Yet, the fact that such a belief is being held by a
considerable number of maintenance payees has prompted us to explore
what, if anything, can be done to accommodate the suggestion.

4.31     In searching for an answer, we note that in Ireland, the court may
order that maintenance payments be made into court for onward
transmission to the maintenance payees. The experience there is that the
two parties - and in the case of attachment of earnings orders, also the
employers - all welcome the arrangement. They do so because it avoids
any contact between the parties and thus, the conflict which may arise
during such contacts. It also minimises any possible disputes as to
whether payments have indeed been made in accordance with the relevant
maintenance orders. In Hong Kong, SWD has advised that if such an
arrangement is made, it will regard a certificate to that effect by the court
registry concerned as sufficient evidence that the maintenance payee has
not received maintenance. The certificate, therefore, can speed up the
means test to be conducted by SWD in processing any application made by
the maintenance payee for CSSA.

4.32    We have discussed with the Judiciary Administrator the possibility
of maintenance payments being made into court. The Judiciary
Administrator has advised that the court can specify, in appropriate
cases, the mode of payment (including payment be made into court)

                                     29
after taking into account the wishes of the parties involved and the
circumstances surrounding the cases concerned. It must be made
clear, however, that where a payment has not been made into court as
ordered, it would not be appropriate for the Judiciary to step into the
maintenance payee’s shoes and initiate actions to recover arrears.
The court must be clearly seen to be neutral and impartial in
adjudicating upon any application to recover maintenance arrears.

Surcharge

4.33     According to the NGOs, some maintenance payers refuse to pay
until the last minute before a court hearing, only to default again after a
short period. Thus, the maintenance payees have to institute legal
proceedings time and again. To address the problem, we recommend
that amendments be made to the relevant Ordinances to empower the
court to impose a surcharge where the maintenance payer :-

       (a) has defaulted in payment without reasonable excuse; or

       (b) is in any way at fault (e.g. failing to explain to the
           maintenance payee why he cannot pay).

Addresses

4.34      No legal action can be taken against a maintenance payer if his
addresses are unknown. After the legislative amendments enacted in June
1997, a maintenance payer must notify the maintenance payee of any
change in address within 14 days. Failure to do so would constitute a
criminal offence and the maintenance payer will be liable to a fine at level
2 (i.e. up to $5,000).

4.35    We have considered whether the penalty level is too low to have
any deterrent effect. The available information suggests that no one has
ever been prosecuted for such an offence. In the absence of any
enforcement statistics and since such a failure can be due to simply an
oversight, we recommend that there is no objective ground for
proposing an increase in the penalty.

4.36    No prosecution has been taken out apparently because even some

                                     30
lawyers do not know where to report such offences. The Police has
advised that such offences should be reported to the police station nearest
to the maintenance payer’s last known address. We recommend that the
Police’s advice should be passed onto the NGOs and professional
bodies for information of their members.

4.37     Where legal action has to be taken against a maintenance payer
whose latest address is not known to the maintenance payee, LAD writes to
the Immigration Department, Transport Department and Housing
Department to request for the address. Some NGOs allege that lawyers in
private practice do not do such a search and therefore, cannot institute
actions if the maintenance payee does not provide the address. In its letter
to HAB, the Law Society expresses the view that the Personal Data
(Privacy) Ordinance (“PDPO”) prevents the departments concerned from
supplying the maintenance payers’ addresses.

4.38     In fact, if the lawyers provide sufficient information to satisfy the
departments concerned that the addresses will be used to remedy unlawful
conducts (e.g. to take legal action against failure to comply with a
maintenance order), the departments can provide the information without
contravening the PDPO. HAB has consulted the departments on the
drafting of a standard letter for requesting the information. HAB has
requested the Law Society to circulate the standard letter to its
members.

4.39     Some NGOs and politicians have suggested that maintenance
payees be allowed to obtain from IRD the addresses of maintenance payers.
Finance Bureau has informed HAB that the existing secrecy provision in
the Inland Revenue Ordinance cannot be relaxed lest it might deter
taxpayers from providing information and hence, adversely affect the
collection of revenue. We take the point and recommend not to pursue
the suggestion further.

Suspension of driving licence

4.40    A measure adopted overseas to enforce payment of maintenance is
to suspend the driving licence of the maintenance payer until he has settled
the arrears. We do not recommend similar legislative provision in
Hong Kong because :-

                                      31
      (a) the measure is too draconian, considering that there is no
          direct link between the holding of a driving licence and the
          payment of maintenance; and

      (b) for a maintenance payer who is a driver by occupation, the
          suspension would adversely affect his earning power and in
          turn, his ability to settle the arrears.

Transfer of information to credit reference agencies

4.41      It might have some - though probably limited - deterrent effect
against default if information on arrears (e.g. the court’s decisions after
hearing of judgement summonses or AIO applications) could be supplied to
the credit reference agencies such that when the debtors apply for loans and
credit, the information could be taken into account by the financial
institutions concerned.

4.42     We note, however, that under the Code of Practice on Consumer
Credit Data issued by the Privacy Commissioner for Personal Data under
the Personal Data (Privacy) Ordinance, a credit reference agency may
collect only “public record data” being “data in official records that are
publicly available relating to judgements for monies owed entered against
the individual ….” (para. 2.1.2.2 of the Code). As the court’s judgements
referred to in the preceding paragraph are not contained in “official records
that are publicly available”, credit reference agencies would contravene the
Code if they collect such information.

Procedures in applying for CSSA and legal aid

Background

4.43    A maintenance payee who fails to receive maintenance payment
and suffers financial hardship may apply for CSSA. Legal aid can also be
provided to enable her to institute legal proceedings to recover the arrears if
she passes the means test and merit test.

4.44   In order to avoid the problem of some divorcees choosing to rely
on CSSA rather than claiming maintenance, SWD revised its procedures in

                                      32
August 1998 – please see paras. 3.8 and 3.9. CSSA applicants who appear
to have a case for claiming maintenance, in addition to signing an
undertaking to the effect that they will take legal action to make the claims,
are also advised to apply for legal aid from LAD.

Difficulties

4.45     According to some NGOs, the procedures in applying for CSSA
and legal aid are complicated and time-consuming. Divorcees have to
make numerous visits to SWD, LAD and their lawyers, at the expense of
the time they have to spend on caring for their children and for those who
are employed, their work. It is also said that some CSSA applicants have
to wait for a long time before they are granted CSSA. Their and their
children’s livelihood suffers because of the delay.

Review

4.46     Like all other cash assistance from the public funds, applications
for CSSA have to go through the necessary verification and authorisation
procedures. SWD deals with each case in the light of its particular
circumstances. For urgent cases where there is a genuine need, the
department may provide cash assistance as early as within the same day
when the application is made. The present practice is that CSSA
recipients are not normally required to undergo a means test when they
apply for legal aid.

4.47    Having regard to the comments received, we considered it
advisable to examine the existing procedures in processing applications for
CSSA and legal aid to be made by divorcees. A Sub-group was therefore
convened to look into the procedures with a view to synchronising the
work of the two departments.

4.48     The Sub-group has examined the relevant procedures and has
identified the following areas which may leave room for improvement :-

      (a) where a single parent applying for CSSA claims that she does not
          know the present address of the maintenance payee, SWD takes
          her word for it and does not require her to sign the undertaking.
          It is conceivable, however, that SWD may be able to obtain the

                                      33
        required address from other departments. If so, legal actions can
        be taken, possibly resulting in a reduction of the CSSA payable;

     (b) a single parent has to visit SWD to apply for CSSA, visit LAD for
         information and then visit LAD on another day in order make a
         legal aid application and to be interviewed; and

     (c) as SWD advises all such single parents to apply for legal aid,
         many of them do so. LAD’s experience is that some 40% of
         such applications cannot be approved because the maintenance
         payers’ current addresses are not available and there is no other
         information to facilitate the recovery action, even after LAD has
         made enquiries with other departments. This is a frustration to
         both LAD and the applicants.

4.49    We recommend that the following revised procedures proposed
by the Sub-group be adopted :-

     (a) where the only reason why a CSSA applicant is not required
         to take recovery actions is that she does not have the
         maintenance payer’s latest address, SWD should request
         ImmD, TD and HD to search their records for the address.
         The applicant will not be required to take recovery actions
         only if SWD is satisfied, after the searches, that the address is
         outdated or not available;

     (b) LAD and SWD will design a checklist on the information
         required by both departments in considering legal aid and
         CSSA applications respectively. Where SWD is of the view
         that the CSSA recipient should take legal actions to recover
         arrears, it will forward the completed checklist, together with
         the maintenance payer’s latest address, to LAD. This
         arrangement will save the time of the LAD applicant in giving
         a statement to LAD when she applies for legal aid;

     (c) where the information forwarded by SWD is inadequate or
         does not disclose a reasonable chance of recovery against the
         maintenance payer, LAD will inform SWD accordingly and
         take no further action unless further and adequate

                                   34
         information is provided. This will screen out at least some
         cases with no or remote chance of recovery and dispense with
         the need of these CSSA recipients to apply for legal aid;

      (d) LAD will inform the CSSA recipient by letter of the
          appointment date. On the basis of the information provided
          by SWD, LAD will prepare, in advance, all the papers
          requiring the CSSA recipient’s signatures and in appropriate
          cases, issue an “Offer of Legal Aid” for her acceptance during
          the appointment as far as practicable. The CSSA recipient
          can then wait for the formal legal aid certificate to be sent to
          her by post;

      (e) CSSA applicants and recipients, except for those referred to
          in (d) above, will not be advised to apply for legal aid. This
          would save some of them the inconvenience and frustration of
          making futile legal aid applications;

      (f) if a CSSA recipient does not turn up during the appointment
          referred to in (d), LAD will inform SWD, which will advise
          the recipient that her CSSA may be terminated if she does not
          take recovery actions;

      (g) the above revised procedures apply to single parents who are
          CSSA recipients, not applicants. In other words, CSSA
          applicants will not be referred by SWD to apply for legal aid
          to take enforcement proceedings unless and until they have
          passed the means test for CSSA, thereby saving at least most
          of them the trouble of undergoing a means test at LAD; and

      (h) when SWD reviews a CSSA case periodically, it will contact
          LAD to find out the latest development of the court case.
          SWD will make adjustments to the CSSA payments having
          regard to the moneys recovered on behalf of the CSSA
          recipient.

4.50   The recommendations in the preceding paragraph apply to cases
where a CSSA recipient already has a maintenance order in her favour.
For CSSA recipients who have yet to apply for a divorce or a maintenance

                                   35
order, professional staff of LAD will have to interview them before
deciding whether or not they can pass the merit test. We recommend
that for such cases, the following procedures be adopted in future :-

    (a) SWD should refer to LAD CSSA recipients with their personal
        particulars stating the nature of their applications (e.g. for
        divorce, for maintenance orders);

    (b) LAD will invite the CSSA recipients to attend interviews at the
        appointed times;

    (c) at the time of the appointment, a CSSA recipient will complete
        the application procedures and go through LAD’s one-stop
        service;

    (d) in an appropriate case where LAD decides to offer legal aid,
        the legal aid applicant will be issued an Offer of Legal Aid for
        her acceptance on the date of the appointment as far as
        practicable; and

    (e) a Legal Aid Certificate will be sent to the legal aid applicant by
        post and she will be contacted by the solicitor assigned to take
        on her case.

4.51    We believe that the recommended procedures would result in a
reduction in the CSSA payable to some single-parent families, avoid some
such families making unsuccessful legal aid applications and minimise the
time spent by the families in connection with legal aid applications. It is
considered, however, that the procedures should be tested before being
adopted by all SWD field units. We recommend that a pilot scheme,
for 4 months with effect from 1 March 2000, be implemented in the
Mongkok Field Unit of SWD and Kowloon Branch Office of LAD.

Counselling for single parents

4.52     We are conscious that single-parent families, regardless of their
financial circumstances, face difficulties not experienced by other families.
The heads of such families are subject to considerable stress, physical and
mental. They need advice and emotional support, especially when they

                                     36
have to deal with a crisis, such as when they fail to receive maintenance
payments.

4.53     At present, social workers from family services centres of SWD
and NGOs provide a range of services to help single parents and children to
cope with the stress and special needs arising from single parenthood.
These include counselling service and mutual help groups which help them
overcome the trauma of family breakdown, regain self-esteem and plan for
the future. Assistance to meet their financial, housing, childcare and
supervision, and other practical needs is arranged. If a single parent fail to
get alimony from the ex-spouse, referral to Legal Aid Department is made
for arrangement of legal actions to be taken. Information on services
available is contained in a pamphlet specially designed for single parents.

4.54     We recommend to further streamline the existing referral
procedure of single parents receiving CSSA from Social Security Field
Units to family services centres for timely social work intervention. A
leaflet which also serves referral purpose will be produced to facilitate
early referral for family services. Apart from tangible services,
counselling with information co-ordinated will be given to support
single parents to take recovery actions if they fail to receive the
alimony payable under maintenance orders. The focus is on helping
single parent families regain self-reliance in the long run.

Publicity and public education

4.55    In the research report prepared by the LegCo Secretariat in April
1999, it is stated that “while increasing enforcement powers of child
support agencies may result in more child support being collected, it would
be more cost-effective if ways could be found to improve voluntary
compliance” (para. 6.37 of report). In response, HAB said in a paper
submitted to the LegCo Panel on Home Affairs that “we share the view
about encouraging voluntary compliance and will consider further, in our
review, what can be done by way of public education” (para. 12 of HAB’s
paper in June 1999).

4.56   On the other hand, feedback from NGOs suggests that there are
some common misunderstandings among maintenance payees. For
example, some think that they must contact the maintenance payers

                                      37
personally in order to collect payments and that in case of default, their
lawyers will not and cannot institute recovery proceedings unless they can
provide the lawyers with the maintenance payers’ up-to-date addresses.
There are others who feel helpless and simply do not know what they
should do to recover arrears or cope with their financial hardship. Such
misunderstandings and feelings appear to be harboured not only by
individual maintenance payees but also, NGOs from which they seek help.

4.57     We recommend that publicity measures be mounted to:-

       (a) drive home to the public the message that a person is
           responsible for the maintenance of his child and ex-spouse
           even after divorce. Overseas experience suggests that such a
           social norm is probably a more effective means, than vigorous
           enforcement measures, to address the problem of default in
           maintenance payments; and

       (b) inform maintenance payees of their rights and what services
           are available to them when they fail to receive maintenance
           payments.

4.58   While the publicity measures should be carried out mainly by the
Government, we recommend that subject to availability of funds, some
community involvement projects should be mounted in co-operation
with NGOs which provide services to single-parents.




                                    38
                     Chapter 5 : Maintenance board

Views received

5.1     The proposal for a maintenance board was the main item raised by
the Legislative Council, Provisional District Boards and NGOs.

5.2      In general, those who support such an intermediary body are of the
view that the problem of maintenance arrears is serious. The legal
procedures to enforce payments are cumbersome and time-consuming.
The divorcees who do not receive payments are subject to physical and
mental stress. Their children are exposed to financial hardship and
witness the predicament faced by their caring parents. This adversely
affects the children’s development. Those in favour of setting up an
intermediary body hold the view that the problem cannot be solved by
simply amending the existing legal procedures. They suggest that the
Government should set up an intermediary body to collect maintenance on
behalf of the divorcees. This not only would address the difficulties faced
by the divorcees, but also would avoid the situation whereby some
divorcees rely on CSSA and refrain from applying for maintenance or from
taking legal actions to recover arrears. In the circumstances, those who
advocate the establishment of an intermediary body consider that it would
relieve the burden on CSSA.

5.3     Those who have reservations about the proposal for an
intermediary body also urge the Government to address the difficulties
encountered by the divorcees in enforcing payments. They, however,
question whether such an intermediary body is the only or the best solution.
They are concerned about cost-effectiveness and the resources required to
establish such a body. They suggest that the Government should
concentrate its efforts on improving the existing law and administrative
measures, including streamlining the procedures in applying for CSSA and
legal aid. They consider it inappropriate, at the present stage, to create a
new executive body to intervene directly in the collection and enforcement
of maintenance payments.

Principles to consider

5.4     The proposal for a maintenance board to collect and enforce

                                     39
maintenance payments involves the maintenance payees’ assigning to the
board their right to maintenance payments. In common law, the right to
maintenance arrears already accrued is assignable, but not the right to
future periodical payments. Therefore, if the proposal is to be enacted,
new legislation will have to be enacted.

5.5     Our law has always recognised maintenance payments as private
matters between the individuals concerned. There is also the principle
that the Government should confine its services to those which cannot be
provided by the private sector. The proposal to establish a maintenance
board amounts to the Government providing services at present available
from lawyers in private practice.

5.6      Adopting the proposal for a maintenance board, therefore, requires
a departure from established principles. We are of the view that such
departure, to the extent of the Government acting on behalf of a
litigating party, could be justified - if at all - only if it would bring clear
and substantial benefits to the individuals concerned or the taxpayers.

Overseas experience

5.7     The idea of a maintenance board stems from the Child Support
Agencies (“CSA”) in United States, New Zealand, Australia and United
Kingdom. The CSAs in US were set up in 1975. Those in the other
three countries were set up in the last ten years or so - 1988 in Australia,
1992 in NZ and 1993 in UK.

5.8     The publications issued by the last three mentioned countries show
that the main reasons for establishing the CSAs were that the courts were
inconsistent in assessing the amounts of maintenance, the assessments were
on the low side and the collection rates were also low. As a result, some
single-parents with custody of children (“the caring parents”) did not apply
for maintenance and instead, relied on social security payments. For some
of those who did receive maintenance, the amounts assessed by the court
were low and therefore, the single-parents still had to rely on social security
payments. In the circumstances, the single-parent families constituted a
heavy burden on the social security system. It was to relieve such a burden,
and also to shift the financial responsibility back to the liable parents (i.e.
those who should provide for their ex-spouses and children), that CSAs

                                      40
were set up. By acting as intermediary bodies, the CSAs also served to
avoid the distress and bitterness experienced by divorcees when they have
to contact each other.

5.9      The CSAs took over from the court the power to make maintenance
orders. For the sake of consistency, formulae were adopted to assess the
amounts of maintenance.           Caring parents receiving social security
payments must apply for maintenance. If they do not, their social security
payments will be reduced (by 20% in UK) unless they have acceptable
reasons for not applying. The CSAs are also to collect maintenance from
the liable parents for distribution to the caring parents. They also institute
enforcement actions against default in payments. In US, an additional
function of the CSA is to establish whether a person is the father of a child
seeking maintenance.

5.10 To enable the CSAs to perform their functions, they are vested with
wide powers. They may access tax records in order to find out the
incomes and whereabouts of the persons concerned. They may issue
attachment of income orders requiring a maintenance payer’s employer to
deduct maintenance from wages and remit the deductions to the CSAs.
They may withhold tax refunds due to the maintenance payers. In some
states of the US, CSAs may even suspend the driving licences of those who
fail to pay maintenance.

5.11 The available information suggests that in Australia, New Zealand
and UK, the establishment of the CSAs does result in reduction in social
security payments. We believe that the reduction was due, at least in part,
to the increase in the general level of maintenance awarded by the CSAs as
compared with the assessments previously made by the courts. In
Australia, for example, the average level of maintenance increased from
A$26 per week in 1988 to A$42 per week in 1992/93, representing an
increase of over 60%.

5.12 Some of those who propose to set up a maintenance board in Hong
Kong suggest that overseas experience shows social security expenditure
has been reduced because of the cost effectiveness of the CSAs, and in
particular the higher collection rates of maintenance as a result of setting up
the CSAs.


                                      41
5.13 The Legislative Council Secretariat published two research reports
in December 1998 and April 1999 on the performances of CSAs in US,
Australia, New Zealand and UK. They deal at some length with the
questions of cost effectiveness and collection rates. Paragraph 6.3 of the
December 1998 Report states :-

         “ …. official information on how the collection rate was
         calculated before the establishment of the child support agencies
         in the US, Australia and the UK was not available. It is
         therefore not possible to say whether it is useful to have a
         dedicated body for collecting child support for these three
         countries.”

5.14 As regards the fourth country, i.e. New Zealand, its collection rate
of maintenance was 91% after the establishment of the child support
agency. Paragraph 13.18 of the LegCo Secretariat’s December 1998
Report states :-

         “ …. it seems that the collection rate has increased from about
         40% to a much higher rate after the child support agency was
         established. However, it is not known whether the collection
         rates before and after the establishment of the child support
         agency are calculated in the same manner.”

5.15 The collection rate of 91% in New Zealand is the highest among
the lot. The Report shows that the collection rate of the child support
agencies is 81% in Australia, 53% in UK and only 21% in US.

5.16 As regards the present situation in maintenance collection,
paragraph 13.19 of the Report states : -

         “Child support debts are building up in all four countries. A lot
         of the debts have been outstanding for a long time and are
         difficult to collect. New Zealand is conducting a trial to
         sub-contract collection of old debts to the private sector. About
         20 states in the US have contracted private sector firms to collect
         some of the child support debts.”



                                    42
5.17 According to paragraph 6.35 of the LegCo Secretariat’s April 1999
Report, a parliamentary committee in Australia has : -

         “suggested that the government refer difficult cases to private
         collection agencies as a means of improving the efficiency of the
         child support agency. The child support agency would monitor
         the privatisation of child support activities in the United States
         and New Zealand before making decision on the proposal.”

5.18 UK is the only country which does not intend to privatise debt
collection. The reason, according to paragraph 6.36 of the LegCo
Secretariat’s April 1999 Report, is that : -

         “ … the debt of the child support agency was very rarely clean
         debt since there was often a genuine dispute over what amount
         should be paid due to problems related to assessment.”

5.19 During the LegCo’s motion debate on 8 December 1999, one view
in support of the establishment of a maintenance board in Hong Kong was
that according to Table 18 of the LegCo Secretariat’s December 1998
Report, the CSA in US succeeded in collecting $3.9 with every $1 spent.
However, another Member, who voted against the proposal to establish
such a body, pointed out that according to the same Table, the CSA in UK
collected only $0.7 with every $1 spent.

5.20 The ratios mentioned in the preceding paragraph represent the
amount of “enforcement collection” (i.e. amount collected through
enforcement actions, as distinct from “voluntary payment”) divided by the
“operating cost” of the respective CSA. We wish to make the following
points about the ratios :-

      (a) as pointed out in para. 13.23 of the LegCo’s Report, the
          “operating cost” means not just the cost incurred in collecting and
          enforcing payments. It includes also the cost in assessing
          maintenance and in US, establishing paternity and locating the
          liable parents. “The US child support agency spent only one
          third of its operating cost on collection which means the US
          collected as much as US$11 for every US$1 spent on collection.
          The breakdown of the operating costs in the other three countries

                                     43
          is not available.” (para. 13.24 of LegCo Secretariat’s December
          1998 Report);

       (b) Table 18 of the Report shows that the CSA in US, which has the
           best ratio of “enforcement collection” to “operating cost”, in fact
           has the lowest collection through “voluntary payment”. We
           believe that in assessing the cost effectiveness of the CSAs, it is
           the “total collection” (i.e. “enforcement collection” plus
           “voluntary payment”) that should be taken into account; and

       (c) in terms of the ratio of “total collection” to “operating cost”, the
           CSA in Australia, which has a ratio of 6.1:1, is the most cost
           effective. However, this ratio does not enable any conclusion to
           be drawn on the relative efficiency, between the CSA system and
           non-CSA system, in collecting and enforcing payments. In
           order to determine whether the CSA system is more efficient, one
           needs information on whether $1, if spent by the caring parents
           themselves, can result in higher, or lower, “total collection” than
           $6.1. Such information, however, is not available.

5.21 Our view on the various collection to cost ratios set out in Table 18
of the LegCo Secretariat’s December 1998 Report is that the ratios are
meant – and can only be used – to compare the relative cost effectiveness
of the four CSAs overseas. The information does not enable one to draw
any inference on the relative cost-effectiveness between a CSA system and
a non-CSA one.

5.22 According to the LegCo Secretariat’s April 1999 Report, Australia,
New Zealand and UK have all conducted reviews of their CSA system.
Paragraph 5.1 of the Report states:

          “The reviews conducted by Australia, New Zealand and the UK
          have re-affirmed the value and principles behind the child
          support schemes.       While all three countries identified
          weaknesses in their child support schemes, none of them would
          want to dismantle the scheme and revert to a court-based
          system.”

5.23    The reviews came up with a range of recommendations mainly

                                      44
aimed at improving the efficiency and fairness of the schemes.” (para. 6.1
of April 1999 Report) The recommendations related to the factors in the
assessment formula, establishment of review mechanism for assessments,
training for CSA staff on interpersonal skills and sensitivity to the needs
and emotion and clients, building clients’ trust towards the CSAs, one-stop
service for government departments to offer service to the clients, striking a
balance between the privacy rights of the clients and the need to assess and
collect child support and ways to improve the collection and enforcement
of payments.

5.24 We observe that in US, Australia, New Zealand and UK, where
child support agencies have been set up –

      (a) social security expenditure apparently has been reduced after
          the establishment of the agencies;

      (b) the reduction is due, at least in part, to an increase in the
          general level of maintenance awarded by the agencies, as
          compared with the level previously awarded by the courts;

      (c) there was no information on whether or not the establishment
          of the agencies has resulted in an increase in the collection
          rate of maintenance; and

      (d) in reviews conducted on the child support agency schemes,
          the governments of Australia, New Zealand and UK have
          decided not to revert to the court-based systems in the
          assessment of maintenance. The reviews have resulted in
          recommendations aimed at improving the system of
          assessment, the relationship between the agencies and their
          clients and the collection and enforcement of maintenance
          payments.

Proposed functions of maintenance board

5.25 While the main reason for establishing the CSAs in NZ, Australia
and UK appeared to be the inconsistency and inadequacy in the amounts of
maintenance assessed by the courts, such problems do not exist in Hong
Kong. We have not heard any dissatisfaction about our present system

                                      45
whereby the power to assess maintenance is vested in the Judiciary. Even
those who support the proposal for a maintenance board do not advocate
the transfer of the court’s power to an executive body. Their proposed
functions of the board are :-

       (a) to investigate into the financial circumstances of the divorcees
           with a view to providing the information to the court for assessing
           the amounts of maintenance;

       (b) to collect payments on behalf of the divorcees; and

       (c) to take enforcement actions when the maintenance payers fail to
           pay.

5.26 The proponents of maintenance board consider that the proposal, if
adopted, would benefit both the divorcees and the taxpayers, in that :-

       (a) by providing the court with information on the divorcees’
           financial circumstances, the board would enable the court to make
           assessment on the basis of accurate information. At present, it is
           difficult for a litigating party to challenge the information
           provided by the other party and hence, a divorcee can evade
           responsibility by understating his incomes;

       (b) the board’s intervention would relieve the maintenance payees of
           their stress and difficulties experienced in collecting maintenance
           payments; and

       (c) it would reduce the amount of CSSA payable to divorcees. At
           present, in view of the potential difficulties in collecting or
           enforcing maintenance payments, some divorcees either do not
           apply for maintenance or apply for only nominal amounts.
           Instead, they rely on CSSA. With the setting up of the board,
           they would no longer be inhibited from applying for or enforcing
           payments.

Possible effect on CSSA expenditure

5.27    Taking para. 5.26(c) first, those who consider such saving would

                                      46
result point to the experience of CSAs overseas. Though we have
information on the savings in only Australia and UK, we do believe that the
establishment of CSAs overseas has reduced social security expenditure.
However, it is not clear how much of the reduction is due to the increase in
the level of maintenance assessed by the CSAs (as compared with the level
previously assessed by the court) and how much due to an increase in the
collection rate of maintenance.

5.28 In Hong Kong, the factors to be taken into account in assessing
maintenance are clearly laid down in section 7 of the Matrimonial Property
and Proceedings Ordinance (MPPO). The section gives the court
sufficient flexibility to assess the amount having regard to the particular
circumstances of each case. We have not heard any suggestion that the
legislative provision requires amendment; nor is there any suggestion that
the court has been less than fair in applying the provision. In the
circumstances, the establishment of a maintenance board, along the line
proposed in para. 5.25 above, would have no bearing on the general level
of maintenance awards in Hong Kong.

5.29 It may be argued that though the general level of maintenance
awards will not increase, yet the amounts assessed in some cases will
increase if the proposed board is to provide information to the court on the
divorcees’ financial circumstances, as proposed in para. 5.25(a) above.
The argument assumes that the proposed board would have more
investigative powers and expertise than those possessed by private
investigators.

5.30 We wish to make two observations about the argument. First, it is
already common practice for a party filing an affirmation of means to
support it with documentary evidence. The other party, if doubting the
accuracy of the affirmation, may apply to court for further discovery.
Secondly, financial circumstances represent only one of the many factors to
be taken into account by the court - please see extract of section 7 of MPPO
at Annex 5. Some of the other factors involve information of a sensitive
and private nature, e.g. the financial needs and obligations of the parties in
the foreseeable future and the physical or mental disability of the parties.
We do not propose – and even if we do, we doubt whether the community
will support – empowering the board to probe into such matters.


                                      47
5.31 Yet another factor relevant to the proposal in para. 5.25(a) above is
the cost-effectiveness in conducting such investigations, which entail
resources. At present, if a divorcee (or his lawyer) considers it
worthwhile, he can hire private investigators to find out the other party’s
circumstances. Where a divorcee at present does not find it cost effective
to conduct such investigation, it would not be cost effective for the
proposed maintenance board to do it either.

5.32 It has been put to us that many divorcees do not apply for
maintenance - or apply for only nominal amounts - because of the difficulty
in collection and enforcement. Instead, they rely on CSSA. According
to those who propose the establishment of a maintenance, if the divorcees
can avoid the difficulty by entrusting collection and enforcement to the
proposed board, they would apply for maintenance and hence the burden
on CSSA would be reduced.

5.33 We accept that there are cases where divorcees choose to rely on
CSSA rather than seeking maintenance. Our survey on single-parents
receiving CSSA shows that out of 1 001 respondents who became
single-parents owing to divorce or separation, 636 did not apply for
maintenance or applied for only nominal amounts. Of the 636, the
reasons of 443 (i.e. about 70%) are that their ex-spouses could not be traced
or could not afford to pay. As regards the remaining 207 persons, we
estimate that at least about 50 would not apply or be awarded substantial
maintenance in any case. Please see Annex 6 for details.

5.34 The court’s present practice, as described in para. 3.7 above, would
minimise, if not eliminate, the cases where divorcees eligible for a
substantive maintenance choose not to apply or apply for only a nominal
amount.

5.35 There are cases where divorcees who do not receive maintenance
as specified in maintenance orders choose to rely on CSSA instead of
taking legal actions to recover arrears. Our survey on single-parents
receiving CSSA shows that out of 1 001 CSSA recipients who became
single-parents owing to divorce or separation, 112 who have maintenance
orders awarding them substantial maintenance (i.e. not nominal amount)
did not receive payments in full in the past year. Of these, 80 (i.e. 71% of
112) did not take legal actions to recover arrears.

                                     48
5.36 The problem of CSSA recipients not taking legal action to recover
maintenance arrears, however, has already been addressed by SWD’s new
procedures mentioned in paras. 3.8 and 3.9 above. We fail to see how the
proposed maintenance board can enforce payments which cannot be
enforced under the present procedures.

5.37 Yet another argument to support the assertion that the proposed
maintenance board would reduce CSSA expenditure is that the collection
rate of maintenance will increase as a result of establishing the board.
There is nothing from overseas experience to suggest whether or not the
collection rate will increase significantly after setting up the board. Some
of those who believe it will do so on the ground that the maintenance
payers, in awe of the authority, are more likely to pay voluntarily if the
moneys are to be collected by the proposed board. In response, we wish
to make the following points:-

       (a) we doubt whether voluntary payments would increase
           significantly simply because the collector is the proposed board
           rather than the maintenance payee;

       (b) if the suggestion is that the proposed board should serve as a debt
           collection agency, our concern is that the proposed board may
           attract the same complaints as private debt collection agencies do,
           even though it will not resort to the illegal acts committed by
           some unscrupulous agencies. One has to consider whether the
           amount thus collected is commensurate with the expenditure in
           establishing such a collection mechanism and with the possible
           adverse impact on image of the Government; and

       (c) assuming for a moment that the establishment of child support
           agencies did result in an increase in maintenance collection rate
           (please see paras. 5.12 to 5.15 above), it is probably due to the
           agencies’ wide powers (please see para. 5.10 above). We doubt
           that the community in Hong Kong will support conferring such
           wide powers on a public body for the purpose of collecting
           private debts.

5.38    In regard to the assertion that the establishment of a maintenance

                                      49
board would reduce CSSA expenditure, our views are that :-

      (a) the assertion appears to be based on the assumption that the
          proposed board will be given wide investigative and
          enforcement powers. At present, the court already may
          order discovery in order to verify the information provided
          by a litigating party. Many of the wide powers given to child
          support agencies overseas are not appropriate to the Hong
          Kong situation;

      (b) while the establishment of child support agencies overseas has
          resulted in a rise in the general level of maintenance awarded,
          this will not happen in Hong Kong since the setting up of the
          proposed maintenance board would not, and should not, alter
          the present court-based system in assessing maintenance;

      (c) there is no ground for believing that the proposed board
          would be more efficient than the existing system in collecting
          and enforcing maintenance payments; and

      (d) the probability of divorcees choosing to rely on CSSA instead
          of claiming maintenance should have been minimised, if not
          eliminated, by the current practices mentioned in paras. 3.7
          and 3.8 above.

5.39 We conclude, therefore, that though the establishment of CSAs
overseas might have raised the level of maintenance awards and thus
reduced the expenditure on social security payments, it is unlikely that
such result would obtain in Hong Kong by establishing a maintenance
board.

Possible effect on divorcees and children

5.40 We now turn to the question whether the establishment of the
proposed maintenance board would alleviate the difficulties faced by the
maintenance payers in collecting and enforcing payments.

5.41 Those who support the proposal to establish the board are of the
view that since payments will be made through the board, it will avoid the

                                     50
maintenance payees or their children having to approach the maintenance
payers and hence, be exposed to verbal abuse or physical violence by the
latter. In fact, even under the existing system, a maintenance payee who
does not wish to contact her ex-spouse for payment can request the court,
when making a maintenance order, to order that payment be made through
the bank. Lawyers, we understand, usually advise their clients to make
such requests, which are normally approved by the court.

5.42 Where a maintenance payee does not receive payment vide the
mode stipulated in a maintenance order (e.g. though bank transfer), there is
no legal obligation for her to approach the maintenance payer direct to
press for payment. She may also demand payment by letter. She can
institute legal proceedings to recover the arrears forthwith.

5.43 Some NGOs seem to be under the impression that the
establishment of the proposed board would save all the time and efforts
which have to be spent by a maintenance payee on instituting legal
proceedings. In fact, even if enforcement actions are to be taken by the
proposed board (instead of the maintenance payee’s lawyer as at present),
the maintenance payee will still have :

    (a) to be approached by the board for confirmation that the
        maintenance payer has not paid direct to the payee instead of
        through the board;

    (b) to call at the board in order to sign affidavit(s) that she has not
        received payment from the maintenance payer; and

    (c) to attend court hearings. Her attendance is necessary because in
        the proceedings on judgement summons and attachment of income
        order, the court may vary a maintenance order. If the maintenance
        payee herself is not present, the board will not be able to decide, on
        her behalf, whether or not to challenge the variation proposed by
        the maintenance payer. Furthermore, the board does not have
        information on the financial position of the maintenance payer and
        payee.

5.44 The fact that the enforcement actions will be taken by the board’s
lawyers does not mean that a maintenance payee does not have to bear the

                                     51
legal costs. For a maintenance payee who has the financial means, there
is no justification for the board to bear the legal expenses. She, therefore,
will have to pay the board for such expenses in the same way that she has
to pay her lawyer at present.

5.45 In regard to a maintenance payee who suffers financial hardship
owing to the failure to receive maintenance, there is a case for the board to
bear, in the first instance, the legal costs incurred in recovery actions and
also, to advance maintenance payments to her at the same level as CSSA at
present. This, however, will have to be subject to her passing a means test,
in the same way that a person has to pass such a test before being granted
CSSA and legal aid under the present system.

5.46 We accept that at present, such a maintenance payee has to visit
SWD and LAD under the existing system, while under the proposed
maintenance board system, she only has to visit the board. However, we
have recommended in para. 4.39 above the synchronisation of the
procedures in SWD and LAD in processing applications from such
maintenance payees. The recommended improvement measures, when
implemented, would reduce the time and efforts spent by such maintenance
payees in applying for legal aid and CSSA.

5.47 We are conscious that a maintenance payee who fails to receive
maintenance needs not only financial assistance but also, emotional support.
One of the perceived advantages of the proposed board is to provide such
support. Yet, such support can equally be given by social workers of
SWD and NGOs. In para. 4.43 above, we have recommended to
strengthen the counselling service to be given to support single parents.

5.48 In the circumstances, we conclude that the proposed
maintenance board would not be able to offer the divorcees and their
children any significant benefits which could not be achieved by
improving the existing administrative system.

Possible disadvantages

5.49 While the establishment of the proposed board does not appear to
offer any significant benefit to the public purse or the divorcees and their
children, the proposal has the following disadvantages:-

                                     52
(a) for those cases where maintenance payments are made voluntarily
     on time, the fact that payments will be made via the proposed
     board, instead of direct into the maintenance payee’s bank account,
     will mean that she will receive payments later than under the
     present system. The resources to be spent on implementing such
     an indirect collection system do not, as far as such cases are
     concerned, bring any benefit to anybody. In the case of
     maintenance payees with financial means, there is no justification
     for the taxpayers to subsidise them. Therefore, they should pay
     fees to defray the cost in operating such a system. These fees
     would represent unnecessary costs to the maintenance payees;

(b) except perhaps for those who are eligible for CSSA under the
     existing system, the proposed system will have to be a voluntary
     one, i.e. maintenance payees will have a choice whether or not to
     use the board’s service. In view of (a) above, it is likely that only
     those who have experienced difficulties in collecting payments
     will make use of the board’s service. No matter how efficient the
     board is, there is bound to be a significant proportion of cases
     where payments cannot be collected, e.g. because the maintenance
     payers cannot be located or cannot afford to pay. Instead of
     blaming the maintenance payers as at present, the maintenance
     payees will probably level their criticism at the board. This
     appears to explain why, as stated in the LegCo Secretariat’s April
     1999 Report, the relationship between overseas child support
     agencies and their clients leaves room for improvement; and

(c) the time taken to make payments to the maintenance payees and the
     number of cases where maintenance payees do not receive
     payments might, in time, give rise to pressure on the board to
     advance payments to the maintenance payees. If this were
     acceded to, the board would probably not be able to recover all the
     advance payments from the maintenance payers. The end result,
     therefore, would be that taxpayers shoulder a financial
     responsibility which should be the maintenance payers’. This is
     diametrically opposite to the purpose of establishing the proposed
     maintenance board.


                                 53
Conclusion

5.50 To conclude, on the proposal to establish a maintenance board
to collect and enforce maintenance payments, our view – based on
overseas experience and a comparison of the proposed system with our
present system – is that the proposed system would be unlikely to bring,
to either the maintenance payees or the taxpayers, any significant
benefits over and above those which could be achieved by improving
the existing system. Furthermore, in considering whether or not to
adopt the proposed system, account should be taken of the possible
adverse public image of the board even if it operates to the maximum
efficiency. We are also concerned that the adoption of the proposal
might, in time, lead to pressure on the board to advance payments to
the maintenance payees before receiving them from the maintenance
payers.




                                  54
                     Chapter 6 : Future Monitoring

Monitoring body

6.1      One of the suggestions received during our consultation with
NGOs and Provisional District Boards is that there should be a mechanism
to monitor the implementation of the legislation concerning maintenance
and the problems faced by maintenance payees.

6.2      HAB became the policy bureau for maintenance payments in 1995.
The implementation of the relevant legislation involve various parties.
Persons who apply for maintenance orders or enforce such orders do so
with the assistance of their own lawyers. The procedures for processing
the applications are undertaken by the relevant court registries. For those
divorcees requiring financial assistance, LAD provides legal aid and SWD
provides CSSA. Counselling services for those divorcees who need them
are provided by social workers of SWD and NGOs. At present, no bureau
or department has a full picture on how the legislation operates on the
ground.

6.3      We agree, therefore, that there is a need to have a centralised
mechanism to monitor the implementation of the legislation and address
the difficulties encountered by the persons affected. We recommend,
therefore, that the present Inter-departmental Working Group should
continue to exist to undertake such work.

Statistics

6.4      It has been pointed out by some NGOs and LegCo Members that
there is a lack of statistics and factual information to enable the
identification and assessment of the problems arising from the
implementation of the relevant legislation, e.g. no information on how
many maintenance payees do not receive payments or do not take
enforcement actions, how much CSSA is paid to such payees and how
much is the legal aid provided to them and how many hearings on
judgement summonses cannot proceed because of the difficulty in serving
the summonses.



                                    55
6.5     Some of the information in question may not be worthwhile or
possible to collect. Nevertheless, we accept that the present information
systems of the offices concerned do not generate sufficient statistics
necessary for evaluating the performance of the existing legislation on
maintenance and formulating improvement measures. Indeed, during the
review, we had to conduct several piece-meal exercises (i.e. a survey on
single-parent families receiving CSSA, records on judgement summons
hearings during two months and records on moneys collected on legal aid
cases over a specified period). We recommend that as a separate
exercise, a study should be conducted with a view to improving the
existing information systems of the offices concerned in order to
generate information and statistics required for evaluating and
formulating policies on maintenance.




                                   56
                                                              Annex 1

                          Membership list of
              the Inter-departmental Working Group to
             Review of Law and Administrative Measures
    Affecting Divorcees and Children who are Eligible for Alimony


Chairman :
Mr Leo Kwan, JP            Home Affairs Bureau

Members :
Mr Ng Hon-wah              Home Affairs Bureau
Mrs Rachel Cartland, JP    Social Welfare Department
Ms Ann Lau                 Social Welfare Department
(since 24.5.99)
Mrs Cecilia Tong           Social Welfare Department
(before 24.5.99)
Mrs Susan Chong            Social Welfare Department
Mr Sunny Ng                Social Welfare Department
Mr Laurie Lo               Health and Welfare Bureau
Mr Vincent Fung            Health and Welfare Bureau
Mr Stanley Ng              Health and Welfare Bureau
Miss Rosa Choi             Legal Aid Department
Ms Margaret Cheng          Legal Aid Department
Miss Betty Chan            Legal Aid Department
Mr Dylan Ng                Legal Aid Department
Ms Mary Ho                 Department of Justice

Secretary :
Mr Edward Yu               Home Affairs Bureau

Observer :
Mr David Leung             Judiciary Administrator’s Office




                                 57
                                                            Annex 2

                  Membership list of the Sub-group
           to Study Procedures in Processing Applications
     for Comprehensive Social Security Assistance and Legal Aid


Chairman :
Mr Ng Hon-wah             Home Affairs Bureau

Members :
Mrs Rachel Cartland, JP   Social Welfare Department
Mr Sunny Ng               Social Welfare Department
Mrs Emily Leung           Social Welfare Department
Miss Dorothy Tse          Social Welfare Department
(since 12.1.2000)
Ms Peggy Chan             Social Welfare Department
(before 12.1.2000)
Mrs Ng Law See-ling       Social Welfare Department
Miss Rosa Choi            Legal Aid Department
Ms Margaret Cheng         Legal Aid Department
Miss Juliana Chan         Legal Aid Department
Miss Ella Ho              Legal Aid Department
Ms Mary Ho                Department of Justice
Mr Stanley Ng             Health and Welfare Bureau

Secretary :
Mr Edward Yu              Home Affairs Bureau




                                 58
                                                    Annex 3

List of non-government organizations
which have expressed their views to Home Affairs Bureau

1. Association for the Advancement of Feminism
    (新婦女協進會)
    120, G/F, Lai Yeung House,
    Lei Cheng Uk Estate

2. Caritas – Hong Kong Family Service
    (香港明愛家庭服務)
    Rm 137, Caritas House,
    2 Caine Road

3. Caritas Family Service
   Project on Extramarital Affairs
    (香港明愛家庭服務婚外情問題支援服務)
    Rm 106, Caritas Social Centre,
    9 Shing Mun Road, Tsuen Wan

4. Christian Family Service Centre
    (基督教家庭服務中心)
    3 Tsui Ping Road,
    Kwun Tong

5. Equal Opportunities Commission
    (平等機會委員會)
    Unit 2002, 20/F, Office Tower,
    Convention Plaza, 1 Harbour Road,
    Wanchai

6. Harmony House
    (和諧之家)
    PO Box no. 99068, Tsim Sha Tsui Post Office

7. Hong Kong Association for the Survivors of Women Abuse
   (群福婦女權益會)
   Tuen Wan PO Box 452

                                     59
8. Hong Kong Bar Association
    (香港大律師公會)
    LG2 Floor, High Court, 38 Queensway

9. Hong Kong Catholic Marriage Advisory Council, the
    (香港公教婚姻輔導會)
    Rm 101, 1/F, Low Block,
    Grand Millennium Plaza
    181 Queen’s Road Central

10. Hong Kong Children & Youth Services
    (香港青少年服務處)
    6th Floor, 23 Chatham Road South

11. Hong Kong Council of Social Service, the
    (香港社會服務聯會)
    11-13/F Duke of Windsor Social Service Building,
    15 Hennessy Road, Wanchai,

12. Hong Kong Family Law Association
    (香港家庭法律協會)
    38th Floor, Asia Pacific Finance Tower,
    Citibank Plaza, 3 Garden Road, Central

13. Hong Kong Family Welfare Society
    (香港家庭福利會)
    1003 Duke of Windsor Social Service Building
    15 Hennessy Road, Wanchai

14. Hong Kong Federation of Women
    (香港各界婦女聯合協進會)
    G/F, 435 Lockhart Road, Wanchai,

15. Hong Kong Playground Association
    (香港遊樂場協會)
    11/F Southorn Centre
    130 Hennessy Road
    Wanchai

                                    60
16. Hong Kong Single Parents Association
    (香港單親協會)
    G1-7, Tung Moon House,
    Tai Hang Tung Estate, Shamshuipo

17. Hong Kong Women’s Coalition on Equal Opportunities
    (平等機會婦女聯席)
    c/o 119-120 Lei Cheng Uk Estate,
    Lai Yeung House

18. Hong Kong Women Development Association
    (香港婦女發展聯會)
    9/F, Tai Po Commercial Centre,
    152-172 Kwong Fuk Road, Tai Po

19. Hong Kong Young Women’s Christian Association
    (香港基督教女青年會)
    1 MacDonnell Road

20. Law Society of Hong Kong
    (香港律師會)
    3/F Wing On House, 71 Des Voeux Road, Central

21. Secretariat of Legislative Councillors of the Democratic Party
    (民主黨立法會議員秘書處)
    Rooms 401-410, Central Government Offices, West Wing
    11 Ice House Street, Central

22. Yan Oi Tong
    (仁愛堂)
    18 Kai Man Path,
    Tuen Mun

23. 活出新姿
    荃灣城門道九號
    荃灣明愛社區中心轉交




                                    61
                                                   Annex 3 (Continued)

 List of Provisional District Boards that invited Home Affairs Bureau’s
representatives to attend their respective committee meetings to discuss
             the collection and enforcement of maintenance

葵青臨時區議會
社區事務委員會
Kwai Tsing Provisional District Board
Community Affairs Committee

沙田臨時區議會
社區事務委員會
Shatin Provisional District Board
Community Affairs Committee

南區臨時區議會
社區建設及事務委員會
Southern Provisional District Board
Community Building and Affairs Committee

屯門臨時區議會
社會服務委員會
Tuen Mun Provisional District Board
Social Service Committee

灣仔臨時區議會
社區建設委員會
Wanchai Provisional District Board
Community Building Committee

元朗臨時區議會
社會服務,房屋事務及宣傳委員會
Yuen Long Provisional District Board
Social Services, Housing and Publicity Committee




                                        62
                                                                                        Annex 4

Opinion Survey on Single-Parent Families Receiving Comprehensive
Social Security Assistance (CSSA) (Final Report)

Executive Summary

In summary, the noteworthy findings are highlighted below for easy
reference :

1. Among all CSSA single-parent families with whom interviews were
   conducted successfully, 46% of them became single-parent families
   resulted from separation/divorce.

2. 56% of the CSSA single-parent families who had become so because
   of separation/divorce did apply for maintenance.

3. Among those who did apply for maintenance which had been approved
    50% of them were approved for nominal amount of payment;
    The major reasons for not asking for more maintenance were
     a) They perceived that the potential payer could not afford the
          payment
     b) They were not able to locate the potential payer
    Of those who were awarded non-nominal amount1 of maintenance
     36% received payments in full, and 61% did not. The remaining
     3% were those whose first payments were not due when the
     interviews were conducted. Among those who were awarded
     non-nominal amount of maintenance and did not receive payments
     in full, 37% had taken legal recovery actions. The most cited
     reason as to why legal actions had not been taken by those who
     were awarded non-nominal maintenance was that “payers could
     not afford the payment”

4. On the other hand, among those who did not apply for maintenance,
   the major perceived reasons were “the potential payers could not afford
   the payment” or “they could not locate the potential payers”.


1
    Non-nominal amount is the amount more than HK$100 per month, or equivalent amount for
    different periods of time; in the case of a lump-sum amount, the amount is more than HK$1,200.
                                               63
                                                                     Annex 5

Section 7 of the Matrimonial Proceedings and Property Ordinance
(Cap. 192)

7.      Matters to which court is to have regard in deciding what
        orders to make under sections 4, 5 and 6

     (1) It shall be the duty of the court in deciding whether to exercise its
powers under section 4, 6 or 6A in relation to a party to the marriage and, if
so, in what manner, to have regard to the conduct of the parties and all the
circumstances of the case including the following matters, that is to say –

        (a) the income, earning capacity, property and other financial
            resources which each of the parties to the marriage has or is
            likely to have in the foreseeable future;
        (b) the financial needs, obligations and responsibilities which each
            of the parties to the marriage has or is likely to have in the
            foreseeable future;
        (c) the standard of living enjoyed by the family before the
            breakdown of the marriage;
        (d) the age of each party to the marriage and the duration of the
            marriage;
        (e) any physical or mental disability of either of the parties to the
            marriage;
        (f) the contributions made by each of the parties to the welfare of
            the family, including any contribution made by looking after
            the home or caring for the family;
        (g) in the case of proceedings for divorce or nullity of marriage,
            the value to either of the parties to the marriage of any benefit
            (for example, a pension) which, by reason of the dissolution or
            annulment of the marriage, that party will lose the chance of
            acquiring.

     (2) Without prejudice to subsection (3), it shall be the duty of the court
in deciding whether to exercise its powers under section 5, 6 or 6A in
relation to a child of the family and, if so, in what manner, to have regard to
all the circumstances of the case including the following matters, that is to
say –

                                      64
        (a) the financial needs of the child;
        (b) the income, earning capacity (if any), property and other
            financial resources of the child;
        (c) any physical or mental disability of the child;
        (d) the standard of living enjoyed by the family before the
            breakdown of the marriage;
        (e) the manner in which he was being and in which the parties to
            the marriage expected him to be educated;
            and so to exercise those powers as to place the child, so far as
            it is practicable and, having regard to the considerations
            mentioned in relation to the parties to the marriage in
            paragraphs (a) and (b) of subsection (1), just to do so, in the
            financial position in which the child would have been if the
            marriage had not broken down and each of those parties had
            properly discharged his or her financial obligations and
            responsibilities towards him.

    (3) It shall be the duty of the court in deciding whether to exercise its
powers under section 5, 6 or 6A against a party to a marriage in favour of a
child of the family who is not the child of that party and, if so, in what
manner, to have regard (among the circumstances of the case) –

        (a) to whether that party had assumed any responsibility for the
            child’s maintenance and, if so, to the extent to which, and the
            basis upon which, that party assumed such responsibility and
            to the length of time for which that party discharged such
            responsibility;
        (b) to whether in assuming and discharging such responsibility
            that party did so knowing that the child was not his or her
            own;
        (c) to the liability of any other person to maintain the child.


                                                 (Amended 69 of 1997 s. 33)
                                                   [cf, 1970 c. 45 s. 5 U.K.]




                                     65
                                                                      Annex 6

1.   Reasons for not applying for maintenance

                                                              No. of mentions       %
                                                                           (x) (x/463)
Potential payer could not afford the payment                              176       38
Unable to locate the potential payer                                      102       22
Thought that the opposite party would not pay                               31       7
Men should not apply for maintenance                                        21       5
In progress of applying for divorce                                         19       4
Did not know that they can apply for maintenance                            19       4
Did not know how to apply                                                   19       4
Wanted to rely on oneself                                                   17       4
Court procedures too cumbersome                                             14       3
Not eligible for applying maintenance                                        7       2
Fear of violence                                                             6       1
As agreed by both parties                                                    6       1
Did not want to have connection with the opposite party                      6       1
The opposite party was paying in private                                     5       1
Afraid that the opposite party would take children away                      5       1
Already applied for CSSA                                                     1     0.2
My children had grown up and hence no need                                   1     0.2
Others                                                                       8       2



Given by all the 439 respondents who did not apply for maintenance
(each respondent could give more than one reason)




                                          66
2.   Reasons for not asking for more maintenance

                                                                  No. of mentions        %
                                                                              (x)   (x/234)
Potential payer could not afford the payment                                   89        38
Unable to locate the potential payer                                           76        32
Thought that the opposite party would not pay                                  23        10
The amount was declared by court                                               18         8
Suggested by lawyer not to apply for more                                      14         6
Fear of violence                                                                6         3
Court procedures too cumbersome                                                 5         2
In jail                                                                         1       0.4
I had a job and hence not eligible for more                                     1       0.4
The opposite party claimed that it would take children away                     1       0.4



Given by all the 197 respondents who were awarded maintenance at nominal
amounts (each of them could give more than one reason)




3.   Reasons for not taking legal actions to recover maintenance arrears payable

                                                                          No. of         %
                                                                        mentions     (x/75)
                                                                             (x)

Payer could not afford the payment                                            20        26
Unable to locate the payer                                                    10        13
Court procedures too cumbersome                                                5         6
Thought that the opposite party would not pay                                  3         4
Case being handled by SWD                                                      3         4
The opposite party defaulted only occasionally/amount was small                2         3
Fear of violence                                                               2         3
Did not know how to take legal action                                          2         3
Unwilling to pay for court fee                                                 2         3
Not eligible for applying maintenance                                          1         1
Did not want to have any connection with the opposite party                    1         1
As agreed by both parties                                                      1         1
The amount was lower than the required amount for legal action                 1         1
Worry that the opposite party would take the children away                     1         1
No special reasons                                                            21        28



Given by all the 71 respondents who were awarded non-nominal amount of
maintenance, but did not take legal actions to recover arrears payable to them
(each respondent could give more than one reason)

                                          67

				
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