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The Family Proceedings (Amendment No. 2) Rules 1992

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Statutory Instruments

1992 No. 2067 (L.14)

FAMILY LAW

SUPREME COURT OF ENGLAND AND WALES

COUNTY COURTS

The Family Proceedings (Amendment No. 2) Rules 1992

Made

27th August 1992

Laid before Parliament

10th September 1992

Coming into force

5th October 1992

We, the authority having power under section 40(1) of the Matrimonial and Family Proceedings Act 1984(1) to make rules of court for the purposes of family proceedings in the High Court and county courts, in the exercise of the powers conferred by the said section 40, hereby make the following rules:—

Citation, commencement, transitional provision and interpretation

1.—(1) These rules may be cited as the Family Proceedings (Amendment No. 2) Rules 1992 and shall come into force on 5th October 1992.

(2) Rule 12 shall not have effect in relation to a written report the making of which was directed before the commencement of that rule.

2.  The Family Proceedings Rules 1991(2) shall be amended in accordance with the following provisions of these Rules and, in those provisions, any reference to a rule or Appendix by number alone shall be construed as a reference to the rule or Appendix so numbered in the said Rules of 1991.

Children Act 1989: appeals

3.  In rule 1.2(1), in the definition of “district registry”, after “district registry” there shall be inserted “,except in rule 4.22(2A),”.

4.  In rule 4.22, after paragraph (2) there shall be inserted the following new paragraph:—

(2A) In relation to an appeal to the High Court under section 94, the documents required to be filed by paragraph (2) shall,—

(a)where the care centre listed in column (ii) of Schedule 2 to the Children (Allocation of Proceedings) Order 1991(3) against the entry in column (i) relating to the petty sessions area or London commission area in which the court below is situated—

(i)is the principal registry, or

(ii)has a district registry in the same place,

be filed in that registry, and

(b)in any other case, be filed in the district registry, being in the same place as a care centre within the meaning of article 2(c) of the said Order, which is nearest to the court below..

Written offers “without prejudice save as to costs” in ancillary relief proceedings

5.  After rule 2.68, there shall be inserted the following new rule:—

Written offers “without prejudice save as to costs”

2.69  CCR Order 11, rule 10 (written offers “without prejudice save as to costs”) shall apply to proceedings for ancillary relief in a county court as if for the words from “A party who” to “but the offer” in paragraph (2) there were substituted the words “Where an offer is made under paragraph (1), the fact that such an offer has been made”..

Appendix 3

6.  In rule 4.4(3), for “column (iii)” there shall be substituted “column (iv)”.

7.  In rule 4.7(1), for “column (iv)” there shall be substituted “column (iii)”.

8.  For Appendix 3 there shall be substituted the pages contained in Schedule 1 to these Rules.

Ex parte section 8 orders

9.  In rule 4.4(4), for the words “prohibited steps order, or a specific issue order, under section 8” there shall in both places where they occur be substituted the words “section 8 order”.

10.  In rule 4.21(7), for the words “prohibited steps order or specific issue order under section 8” there shall be sustituted the words “section 8 order”.

11.  In Appendix 1, for Form CHA7 there shall be substituted the form contained in Schedule 2 to these Rules.

Welfare officer in Part IV proceedings

12.  For rule 4.13, there shall be substituted the following:—

Welfare officer

4.13(1) Where the court has directed that a written report be made by a welfare officer, the report shall be filed at or by such time as the court directs or, in the absence of such a direction, at least 14 days before a relevant hearing; and the proper officer shall, as soon as practicable, serve a copy of the report on the parties and any guardian ad litem.

(2) In paragraph (1), a hearing is relevant if the proper officer has given the welfare officer notice that his report is to be considered at it.

(3) After the filing of a report by a welfare officer, the court may direct that the welfare officer attend any hearing at which the report is to be considered; and

(a)except where such a direction is given at a hearing attended by the welfare officer, the proper officer shall inform the welfare officer of the direction; and

(b)at the hearing at which the report is considered any party may question the welfare officer about his report.

(4) This rule is without prejudice to any power to give directions under rule 4.14..

Attachment of penal notice to section 8 order

13.  After rule 4.21 there shall be inserted the following new rule:—

Attachment of penal notice to section 8 order

4.21A  CCR Order 29, rule 1 (committal for breach of order or undertaking) shall apply to section 8 orders as if for paragraph (3) of that rule there were substituted the following:—

(3) In the case of a section 8 order (within the meaning of section 8(2) of the Children Act 1989(4)) enforceable by committal order under paragraph (1), the judge or the district judge may, on the application of the person entitled to enforce the order, direct that the proper officer issue a copy of the order, indorsed with or incorporating a notice as to the consequences of disobedience, for service in accordance with paragraph (2); and no copy of the order shall be issued with any such notice indorsed or incorporated save in accordance with such a direction..

Consolidation of rules 6.14 and 10.20

14.  Rule 6.14 shall be revoked.

15.  In rule 10.20(2), for the words “district judge” there shall be substituted the word “court”.

Application for registration of maintenance order in magistrates' court

16.  In rule 7.23(1)(ii), for “No. 115 in Appendix A to the Rules of the Supreme Court 1965(5),” there shall be substituted “M33.”.

17.  In Appendix 1,—

(a)in the list of Forms at the beginning, after the entry relating to Form M32(6) there shall be inserted the following:—

  • “M33 Application for registration of Maintenance Order in a Magistrates' Court”; and

(b)after Form M32(7) there shall be inserted the Form contained in Schedule 3 to these Rules.

Miscellaneous amendments

18.  In rule 2.2(2), for the word “possible” there shall be substituted the word “practicable”.

19.  For rule 4.8(8), there shall be substituted the following:—

(8) In proceedings to which this Part applies, where these rules or other rules of court require a document to be served, the court may, without prejudice to any power under rule 4.14, direct that—

(a)the requirement shall not apply;

(b)the time specified by the rules for complying with the requirement shall be abridged to such extent as may be specified in the direction;

(c)service shall be effected in such manner as may be specified in the direction..

20.  In rule 4.17(1)(a), at the end of paragraph (ii), the word “and” shall be omitted; and after paragraph (iii) there shall be added the following:—

(iv)show in the top right hand corner of the first page—

(a)the initials and surname of the person making the statement,

(b)the number of the statement in relation to the maker,

(c)the date on which the statement was made, and

(d)the party on whose behalf it is filed; and.

21.  In rule 9.3(1), the words “within the meaning of the last foregoing rule” shall be omitted.

22.  In Appendix 1,—

(a)in paragraph 5(b)(iii) of Form M5 (Notice of Proceedings), for “1933” there shall be substituted “1983”; and

(b)in Form CHA 45 (Application for Recovery Order), in the section of the Form headed “[2] About the application”, after the words “an emergency protection order” there shall be inserted the words “or care order”.

23.  In Appendix 2, in paragraph 4(a), the words from “any application for an order” to the word “family” shall be omitted.

Mackay of Clashfern, C.

Stephen Brown, P.

Mathew Thorpe, J.

Roy Ward

Gerald Angel

Kenneth Wills

J. M. Appleby

Dated 27th August 1992

Rule 8

SCHEDULE 1

Rules 4.4 and 4.7

APPENDIX 3NOTICES AND RESPONDENTS

(i) Provision under which proceedings brought(ii) Minimum number of days prior to hearing or directions appointment for service under rule 4.4(1)(b)(iii) Respondents(iv) Persons to whom notice is to be given
All applicationsSee separate entries below

Subject to separate entries below:—

every person whom the applicant believes to have parental responsibility for the child;

where the child is the subject of a care order, every person whom the applicant believes to have had parental respon immediately prior to the making of the care order;

in the case of an application to extend, vary or discharge an order, the parties to the proceedings leading to the order which it is sought to have extended, varied or discharged;

in the case of specified proceedings, the child.

Subject to separate entries below:—

local authority providing accommodation for the child;

persons who are caring for the child at the time when the proceedings are commenced;

in the case of proceedings brought in respect of a child who is alleged to be staying in a refuge which is certificated under section 51(1) or (2), the person who is providing the refuge.

Section 4(1)(a), 4(3), 5(1), 6(7), 8, 13(1), 16(6), 33(7), Schedule 1, paragraph 19(1) of Schedule 2, or paragraph 11(3) or 16(5) of Schedule 14.14 days

As for all applications above, and:

in the case of proceedings under Schedule 1, those persons whom the applicant believes to be interested in or affected by the proceedings;

in the case of an application under paragraph 11(3)(b) or 16(5) of Schedule 14, any person, other than the child, named in the order or directions which it is sought to discharge or vary.

As for “all applications” above, and:

in the case of an application for a section 8 order, every person whom the applicant believes—

(i)

to be named in a court order with respect to the same child, which has not ceased to have effect,

(ii)

to be a party to pending proceed- ings in respect of the same child, or

(iii)

to be a person with whom the child has lived for at least 3 years prior to the application, unless, in a case to which (i) or (ii) applies, the applicant believes that the court order or pending proceedings are not relevant to the application;

in the case of an application under paragraph 19(1) of Schedule 2, the parties to the proceedings leading to the care order;

in the case of an application under section 5(1), the father of the child if he does not have parental responsibility.

Section 36(1), 39(1), 39(2), 39(3), 39(4), 43(1), or paragraph 6(3), 15(2) or 17(1) of Schedule 3.7 days

As for “all applications” above and:

in the case of an application under section 39(2) or (3), the supervisor;

in the case of proceedings under paragraph 17(1) of Schedule 3, the local education authority concerned;

in the case of proceedings under section 36 or paragraph 15(2) or 17(1) of Schedule 3, the child.

As for “all applications” above, and:

in the case of an application for an order under section 43(1)—

(i)

every person whom the applicant believes to be a parent of the child,

(ii)

every person whom the applicant believes to be caring for the child,

(iii)

every person in whose favour a contact order is in force with respect to the child, and

(iv)

every person who is allowed to have contact with the child by virtue of an order under section 34.

Section 31, 34(2), 34(3), 34(4), 34(9) or 38(8)(b).3 days

As for “all applications” above, and:

in the case of an application under section 34, the person whose contact with the child is the subject of the application.

As for “all applications” above, and:

in the case of an application under section 31—

(i)

every person whom the applicant believes to be a party to pending relevant proceedings in respect of the same child, and

(ii)

every person whom the applicant believes to be a parent without parental responsibility for the child.

Section 43(12)2 daysAs for “all applications” above.Those of the persons referred to in section 43(11)(a) to (e) who were not party to the application for the order which it is sought to have varied or discharged.
Section 25, 44(1), 44(9)(b), 45(4), 45(8), 46(7), 48(9), 50(1) or 102(1)1 day

As for “all applications” above, and:

in the case of an application under section 44(9)(b)—

(i)

the parties to the application for the order in respect of which it is sought to vary the directions;

(ii)

any person who was caring for the child prior to the making of the order, and

(iii)

any person whose contact with the child is affected by the direction which it is sought to have varied;

in the case of an application under section 50, the person whom the applicant alleges to have effected or to have been or to be responsible for the taking or keeping of the child.

Except for applications under section 102(1), as for “all applications” above, and:

in the case of an application under section 44(1), every person whom the applicant believes to be a parent of the child;

in the case of an application under section 44(9)(b)—

(i)

the local authority in whose area the child is living, and

(ii)

any person whom the applicant believes to be affected by the direction which it is sought to have varied;

in the case of an application under section 102(1), the person referred to in section 102(1) and any person preventing or likely to prevent such a person from exercising powers under enactments mentioned in subsection (6) of that section.

Rule 11

SCHEDULE 2

Rule 17(b)

SCHEDULE 3

Explanatory Note

(This note is not part of the Rules)

These Rules amend the Family Proceedings Rules 1991 so as:—

(a)to regulate the use of district registries for commencing appeals to the High Court under section 94 of the Children Act 1989 (rules 3 and 4);

(b)to allow written offers “without prejudice save as to costs” to be made in ancillary relief proceedings in county courts without having to be filed at court in a sealed envelope (rule 5);

(c)to reverse the order in which the last two columns appear in Appendix 3 so as to make the layout similar to that of the corresponding table (Schedule 2) in the Family Proceedings Courts (Children Act 1989) Rules 1991 (S.I. 1991/1395 to which there are amendments not relevant to Schedule 2) which apply in magistrates' courts (rules 6, 7 and 8 and Schedule 1);

(d)to reduce the notice period for the first hearing of an application for an order under section 8 of the Children Act 1989 (a "section 8 order') from 21 days to 14 days (rule 8 and Schedule 1);

(e)to enable residence orders and contact orders under the Children Act 1989 to be made ex parte (rules 9, 10 and 11 and Schedule 2);

(f)to modify the provision concerning the attendance of welfare officers at hearings in proceedings to which Part IV applies; the main change is that instead of being required to attend hearings unless excused by the court, the welfare officer will not have to attend unless the court so orders, and the welfare officer is required to file his report at least 14 days before a hearing at which it is to be considered instead of 5 days (rule 12);

(g)to specify when and how a penal notice may be attached to a section 8 order in a county court (rule 13);

(h)to consolidate the overlapping provisions of rules 6.14 and 10.20 (which permit a person who would not otherwise be entitled to a copy of an order relating to the custody of a child to obtain one where he intends to commence, abroad, proceedings under certain international conventions concerning child abduc tion and the recognition of custody orders) by revoking the former and amending the latter (rules 14 and 15);

(i)to prescribe a new form by which application should be made for the registration of a High Court or county court maintenance order in a magistrates' court (rules 16 and 17 and Schedule 3); and

(j)to make minor drafting changes and to correct minor errors (rules 18—23).

(1)

1984 c. 42. Section 40 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18, paragraph 50.

(2)

S.I. 1991/1247, amended by S.I. 1991/2113, 1992/456.

(3)

S.I. 1991/1677.

(5)

S.I. 1965/1776; relevant amending instruments are S.I. 1985/1277 (which inserted the Form) and S.I. 1991/2671 (which caused it to be omitted).

(6)

The entry was inserted by S.I. 1992/456.

(7)

Form M32 was inserted by S.I. 1991/2113.

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