The Family Proceedings Courts (Children Act 1989) (Amendment) Rules 1997

Statutory Instruments

1997 No. 1895 (L.31)

MAGISTRATES COURTS

The Family Proceedings Courts (Children Act 1989) (Amendment) Rules 1997

Made

28th July 1997

Laid before Parliament

31st July 1997

Coming into force

1st October 1997

The Lord Chancellor, in the exercise of the powers conferred on him by section 144 of the Magistrates' Courts Act 1980(1) after consultation with the Rule Committee appointed under that section, hereby makes the following Rules–

Citation, commencement and interpretation

1.—(1) These Rules may be cited as the Family Proceedings Courts (Children Act 1989) (Amendment) Rules 1997 and shall come into force on 1st October 1997.

(2) The Family Proceedings Courts (Children Act 1989) Rules 1991(2) shall be amended in accordance with the following provisions of these Rules and, in those provisions, any reference to a rule by number alone shall be construed as a reference to the rule so numbered in the said Rules of 1991.

2.  Rule 23 shall be amended by inserting, after paragraph (2), the following new paragraph–

“(3) Nothing in this rule shall prevent the disclosure of a document prepared by a guardian ad litem for the purpose of–

(a) enabling a person to perform functions required by regulations made under section 41(7);

(b) assisting a guardian ad litem or a reporting officer (within the meaning of section 65(1)(b) of the Adoption Act 1976(3)) who is appointed under any enactment to perform his functions.”.

3.—(1) Rule 25(4) shall stand as paragraph (1) of that rule and shall be amended by inserting, as sub-paragraph (b), the following–

“(b) section 38A(2)(b)(ii) or 44A(2)(b)(ii), or”.

(2) After rule 25(1), there shall be inserted the following–

“(2) Any written consent given for the purposes of subsection (2) of section 38A or section 44A, shall include a statement that the person giving consent–

(a) is able and willing to give to the child the care which it would be reasonable to expect a parent to give him; and

(b) understands that the giving of consent could lead to the exclusion of the relevant person from the dwelling-house in which the child lives.”.

4.  After rule 25, there shall be inserted the following new rule–

“Exclusion requirements: interim care orders and emergency protection orders

25A.— (1) This rule applies where the court includes an exclusion requirement in an interim care order or an emergency protection order.

(2) The applicant for an interim care order or emergency protection order shall

(a) prepare a separate statement of the evidence in support of the application for an exclusion requirement;

(b) serve the statement personally on the relevant person with a copy of the order containing the exclusion requirement (and of any power of arrest which is attached to it);

(c) inform the relevant person of his right to apply to vary or discharge the exclusion requirement.

(3) Where a power of arrest is attached to an exclusion requirement in an interim care order or an emergency protection order, a copy of the order shall be delivered to the officer for the time being in charge of the police station for the area in which the dwelling-house in which the child lives is situated (or of such other station as the court may specify) together with a statement that the relevant person has been served with the order or informed of its terms (whether by being present when the order was made or by telephone or otherwise).

(4) Rules 12A(3), 20 (except paragraphs (1) and (3)) and 21 of the Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991(5) shall apply, with the necessary modifications, for the service, variation, discharge and enforcement of any exclusion requirement to which a power of arrest is attached as they apply to an order made on an application under Part IV of the Family Law Act 1996.

(5) The relevant person shall serve the parties to the proceedings with any application which he makes for the variation or discharge of the exclusion requirement.

(6) Where an exclusion requirement ceases to have effect whether–

(a) as a result of the removal of a child under section 38A(10) or 44A(10),

(b) because of the discharge of the interim care order or emergency protection order, or

(c) otherwise,

the applicant shall inform–

(i) the relevant person,

(ii) the parties to the proceedings,

(iii) any officer to whom a copy of the order was delivered under paragraph (3), and

(iv) (where necessary) the court.

(7) Where the court includes an exclusion requirement in an interim care order or an emergency protection order of its own motion, paragraph (2) shall apply with the omission of any reference to the statement of the evidence.”.

5.  Rule 31(1)(6) shall be amended by substituting, for the words “in Form C37”, the words “in writing”.

6.  After rule 33A there shall be inserted the following–

“Setting aside on failure of service

33B.   Where an application has been sent to a respondent in accordance with rule 8(1) and, after an order has been made on the application, it appears to the court that the application did not come to the knowledge of the respondent in due time, the court may of its own motion set aside the order and may give such directions as it thinks fit for the rehearing of the application.”.

7.  There shall be substituted, for Forms C11, C23 and C33 in Appendix 1 to the Family Proceedings Courts (Children Act 1989) Rules 1991, the forms contained in the Schedule to these Rules.

8.  Nothing in rules 3, 4 and 7 shall apply to proceedings issued before 1st October 1997.

Irvine of Lairg, C

Dated 28th July 1997

Rule 7

SCHEDULE

Explanatory Note

(This note is not part of the Rules)

These Rules amend the Family Proceedings Courts (Children Act 1989) Rules 1991 so as–

(a) to relax for specified purposes the requirements for confidentiality in respect of the report of a guardian ad litem (rule 2);

(b) to make provision where the court includes an exclusion requirement in an interim care order or an emergency protection order (rules 3, 4, 7 and 8);

(c) to make a minor correction (rule 5);

(d) to enable magistrates to set an order aside where there has been failure of service (rule 6).

(1)

1980 c. 43; the relevant amending enactment is the Courts and Legal Services Act 1990 (c. 41), Schedule 18 paragraph 25).

(2)

S.I. 1991/1395; the relevant amending instruments are noted in footnotes to provisions in the body of the instrument.

(3)

1976 c. 36.

(4)

Rule 25 was amended by S.I. 1992/2068.

(5)

Rules 20 and 21 of the Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991 were amended by S.I. 1997/1894.

(6)

Rule 31 was amended by S.I. 1994/3156.