30 Aug 2022

Case Summary – C v S [2022] HKCA 1033 (Hadkinson Order)

We acted for the Defendant Mother (“the Mother”) who obtained a Hadkinson Order pursuant to a judgment given by the Court of Appeal on 26 January 2022 (“the Judgment”), to the effect that unless the Plaintiff Father (“the Father”) complies and continues to comply with a prior Order made in the Family Court in relation to financial provision for the child, his appeal regarding the custody, care and control of the child shall stand dismissed without further Order of the Court.
On 23 February 2022, by way of a Notice of Motion, the Father applied for leave to appeal to the Court of Final Appeal in respect of the said Hadkinson Order on the ground that the Court erred in the “finding of facts” and further erred in its conclusion that the conditions for a Hadkinson Order were met.

What is a Hadkinson Order?
A Hadkinson Order is an Order by which a court may in its discretion refuse to hear a party to a cause, who has disobeyed an Order of the court until that party has purged his/her contempt.

Legal Principles
Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal will only be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

Court’s Decision
The six grounds of appeal advanced by the Father did not satisfy the threshold for the grant of leave to appeal. Thus, the Father’s Notice of Motion was dismissed by the Court.

The Court also said that there is no basis for suggesting that the Judgment will lead to a floodgate of Hadkinson applications. As far as the child’s rights are concerned, the Court has considered how the Father’s non-payment has a detrimental impact on the child’s education and general well‑being. Whether or not a Hadkinson Order should be made by the Court is a fact-sensitive matter and depends on the individual circumstances of a case.

Similarly for ground two to six, the Father did not formulate any question of great general or public importance in the Notice of Motion. Nor did he dispute the law on the conditions for making a Hadkinson Order.

The Father also referred to some other factual matters in the Notice of Motion and his submissions. The consideration of whether these matters justify granting leave under the ‘or otherwise’ limb were deferred to the Appeal Committee of the Court of Final Appeal.

As the Father has failed in his application, the Court ordered him to pay the costs of this application to the Mother.

This article is co-authored by our experienced SW Private Team– Partners Catherine Por and Wendy Lam, and our Senior Associate Karl Wong and Associate Chloe Chow. Please contact Catherine Por or Wendy Lam for any further enquiries or information.

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