The Family Proceedings Fees Order 2004

Citation, commencement and interpretation

1.—(1) This Order may be cited as the Family Proceedings Fees Order 2004 and shall come into force on 4th January 2005.

(2) In this Order—

(a) a fee referred to by number means the fee so numbered in Schedule 1 to this Order;

(b) a rule referred to by number alone means the rule so numbered in the Family Proceedings Rules 1991(1);

(c) expressions also used in the Family Proceedings Rules 1991 have the same meaning as in those Rules;

(d) “LSC” means the Legal Services Commission established under section 1 of the Access to Justice Act 1999(2);

(e) “Funding Code” means the code approved under section 9 of the Access to Justice Act 1999.

Fees to be taken

2.  The fees set out in column 2 of Schedule 1 to this Order shall be taken in family proceedings in the High Court or in a county court in respect of the items described in column 1 in accordance with and subject to the directions specified in column 1.

Exemptions, reductions, remissions and refunds

3.—(1) No fee shall be payable under this Order by a party who, at the time when a fee would otherwise become payable—

(a) is in receipt of—

(i) legal advice and assistance under Part II or Part III of the Legal Aid Act 1988(3) in connection with the matter to which the proceedings relate; or

(ii) Legal Help as defined in, and provided in accordance with, the Funding Code in connection with the matter to which the proceedings relate;

(b) is in receipt of any qualifying benefit and is not in receipt of either—

(i) representation under Part IV of the Legal Aid Act 1988 for the purposes of the proceedings; or

(ii) funding provided by the LSC for the purposes of the proceedings and for which a certificate has been issued under the Funding Code certifying a decision to fund services for that party; or

(c) is not a beneficiary of a trust fund in court of a value of more than £50,000 and is—

(i) under the age of eighteen; or

(ii) a person for whose financial relief an order under paragraph 2 of Schedule 1 to the Children Act 1989(4) is in force or is being applied for.

(2) The following are qualifying benefits for the purposes of paragraph (1)(b)—

(a) income support under the Social Security Contributions and Benefits Act 1992(5);

(b) working tax credit, provided that—

(i) child tax credit is being paid to the party, or otherwise following a claim for child tax credit made jointly by the members of a married couple or an unmarried couple (as defined respectively in section 3(5) and (6) of the Tax Credits Act 2002(6)) which includes the party; or

(ii) there is a disability element or severe disability element (or both) to the tax credit received by the party;

and that the gross annual income taken into account for the calculation of the working tax credit is £14,600 or less;

(c) income-based jobseeker’s allowance under the Jobseekers Act 1995(7); and

(d) guarantee credit under the State Pension Credit Act 2002(8).

4.  Where it appears to the Lord Chancellor that the payment of any fee prescribed by this Order would, owing to the exceptional circumstances of the particular case, involve undue financial hardship, he may reduce or remit the fee in that case.

5.—(1) Subject to paragraph (2), where a fee has been paid at a time—

(a) when, under article 3, it was not payable, the fee shall be refunded;

(b) where the Lord Chancellor, if he had been aware of all the circumstances, would have reduced the fee under article 4, the amount by which the fee would have been reduced shall be refunded; and

(c) where the Lord Chancellor, if he had been aware of all the circumstances, would have remitted the fee under article 4, the fee shall be refunded.

(2) No refund shall be made under paragraph (1) unless the party who paid the fee applies within 6 months of paying the fee.

(3) The Lord Chancellor may extend the period of 6 months referred to in paragraph (2) if he considers that there is good reason for an application being made after the end of the period of 6 months.

6.  Where by any convention entered into by Her Majesty with any foreign power it is provided that no fee shall be required to be paid in respect of any proceedings, the fees specified in this Order shall not be taken in respect of those proceedings.

Revocations

7.  The Orders specified in Schedule 2, in so far as they were made under sections 414 and 415 of the Insolvency Act 1986 and section 128 of the Finance Act 1990, shall be revoked.

Falconer of Thoroton, C

Dated 22nd November 2004

We consent,

John Heppell

Nick Ainger

Two of the Lords Commissioner’s of Her Majesty’s Treasury

Dated 25th November 2004