The Family Proceedings (Amendment) (No.3) Rules 2009

Statutory Instruments

2009 No. 2027 (L. 22)

Family Proceedings

Supreme Court Of England And Wales

County Courts, England And Wales

The Family Proceedings (Amendment) (No.3) Rules 2009

Made

21st July 2009

Laid before Parliament

22nd July 2009

Coming into force as provided in rule 1(2)

The Family Proceedings Rule Committee makes the following Rules in exercise of the powers conferred by section 40(1) of the Matrimonial and Family Proceedings Act 1984(1):

Citation and commencement

1.—(1) These Rules may be cited as the Family Proceedings (Amendment) (No.3) Rules 2009.

(2) These Rules shall come into force as follows—

(a) this rule and rules 2, 3 and 9 to 17 shall come into force on 17th August 2009;

(b) rules 4 to 8, 18 and 20 shall come into force on 1^st September 2009; and

(c) rule 19 shall come into force on 1^st November 2009.

Amendments to the Family Proceedings Rules 1991

2.  The Family Proceedings Rules 1991(2) are amended in accordance with the provisions of rules 3 to 20.

3.  In the Arrangement of Rules—

(a) in the entry for rule 8.2, for “Appeals from magistrates’ courts and appeals from district judges under the Act of 1989 and Parts 4 and 4A of the Family Law Act 1996” substitute “Appeals to a county court and appeals from district judges under the Act of 1989 or Parts 4 and 4A of the Family Law Act 1996 or relating to deduction order appeals”; and

(b) after the entry for rule 8.2F insert—

“8.2FF   Appeal court’s powers: deduction order appeals”.

4.  In rule 3.14, for paragraph (c), substitute—

“(c) if it is known, the name of the petitioner’s father and his residential address at the time of the presentation of the petition;

(cc) if it is known, the name of the petitioner’s mother at her birth and, if it is different, her current name and her residential address at the time of presentation of the petition;”.

5.  In rule 4.1(2)(c), after “4(3),” insert “4ZA(1)(c), 4ZA(6),”.

6.  In rule 4.4, after “4(1)(c)”, wherever it occurs, insert “,4ZA(1)(c) or 4A(1)(b)”.

7.  In rule 4.9(1)(a), after “4(1)(c)”, insert “,4ZA(1)(c) or 4A(1)(b)”.

8.  In rule 4A.1, in the definition of “the birth father”, after “section 28 of the 1990 Act” insert “or by sections 35 to 40 of the Human Fertilisation and Embryology Act 2008(3)”.

9.  For rule 8.A1, substitute—

“8.A1.— (1) In this Part—

(a) “the court below” means the court from which, or the person from whom, the appeal lies;

(b) “the appeal court” means the court to which the appeal is made;

(c) “Commission” means the Child Maintenance and Enforcement Commission; and

(d) “deduction order appeal” means an appeal under regulation 25AB(1)(a) to (d) of the Child Support (Collection and Enforcement) Regulations 1992(4).

(2) For the purposes of a deduction order appeal—

(a) “the appellant” means the person who brings or seeks to bring an appeal; and

(b) “the respondent” means—

(i) the Commission and any person other than the appellant who was served with an order under section 32A(1), 32E(1) or 32F(1) of the Act of 1991; and

(ii) a person who is permitted by the appeal court to be a party to the appeal.”.

10.  In rule 8.2—

(a) for the heading substitute “Appeals to a county court and appeals from district judges under the Act of 1989 or Parts 4 and 4A of the Family Law Act 1996 or relating to deduction order appeals”;

(b) in sub-paragraph (a) of paragraph (1)—

(i) at the end of paragraph (v), omit “or”; and

(ii) for paragraph (vii), substitute—

“(vi) any other enactment giving a person a right of appeal against a decision of a magistrates’ court; or

(vii) regulation 25AB(1)(a) to (d) of the Child Support (Collection and Enforcement) Regulations 1992; or”;

(c) in sub-paragraph (b) of paragraph (1)—

(i) at the end of paragraph (i), omit “or”; and

(ii) at the end of paragraph (ii), insert—

“; or

(iii) relating to a deduction order appeal.”; and

(d) in paragraph (2), omit “(i) and (ii)”.

11.  In rule 8.2A—

(a) at the end of sub-paragraph (a) of paragraph (1), insert “and in the case of a deduction order appeal, the Commission and any other respondent”;

(b) in paragraph (3)—

(i) at the end of sub-paragraph (c), omit “or”; and

(ii) after sub-paragraph (c) insert—

“(cc) in the case of a deduction order appeal, within 21 days of—

(i) where the appellant is a deposit-taker, service of the order;

(ii) where the appellant is a liable person, receipt of the order; or

(iii) where the appellant is either a deposit-taker or a liable person, the date of receipt of notification of the decision; or”;

(c) in paragraph (4) omit “under paragraph (1)”; and

(d) after paragraph (5), insert—

“(6) In the case of a deduction order appeal, the Commission shall provide to the court and serve on all other parties to the appeal any information and evidence relevant to the making of the decision or order being appealed, within 14 days of receipt of the notice of appeal.

(7) For the purposes of paragraph (3)(cc)—

(a) references to “liable person” and “deposit-taker” are to be interpreted in accordance with section 32E of the Act of 1991 and regulation 25A(2) of the Child Support (Collection and Enforcement) Regulations 1992 and section 54 of that Act, respectively; and

(b) the liable person is to be treated as having received the order or notification of the decision 2 days after it was posted by the Commission.”.

12.  In rule 8.2B—

(a) in paragraph (1)—

(i) for “paragraph (2)”, substitute “paragraphs (2) and (3)”; and

(ii) in sub-paragraphs (a) to (c), after “court below” in each place it occurs, insert “or, in a deduction order appeal, the order or decision of the Commission”;

(b) after paragraph (2), insert—

“(3) Where the Commission as a respondent, wishes to contend that its order or decision should be—

(a) varied, either in any event or in the event of the appeal being allowed in whole or in part; or

(b) affirmed on different grounds from those on which it relied when making the order or decision,

it shall, within 14 days of receipt of notice of the appeal, file and serve on all other parties to the appeal a notice in writing, setting out the grounds upon which it relies.”.

13.  For rule 8.2C, substitute—

“8.2C.— (1) Subject to paragraph (2), unless the court orders otherwise, an appeal under rule 8.2(1) shall not operate as a stay of proceedings on the order or decision appealed against.

(2) Paragraph (1) shall not apply to an appeal made against an order under section 32F(1) of the Act of 1991.”.

14.  In rule 8.2E, after paragraph (2), insert—

“(3) A district judge may hear any deduction order appeal.”.

15.  In rule 8.2F, after paragraph (3), insert—

“(4) Paragraph (2)(d) of this rule does not apply in the case of an appeal against the decision of a district judge in proceedings relating to a deduction order appeal.

(5) This rule does not apply to a deduction order appeal.”.

16.  After rule 8.2F insert—

“Appeal court’s powers: deduction order appeals

8.2FF   In the case of a deduction order appeal—

(a) the appeal court has power to—

(i) affirm or set aside the order or decision;

(ii) remit the matter to the Commission for the order or decision to be reconsidered, with appropriate directions;

(iii) refer any application or issue for determination by the Commission;

(iv) make a costs order; and

(b) the appeal court may exercise its powers in relation to the whole or part of an order or decision of the Commission.”.

17.  In rule 8.2G—

(a) at the beginning of paragraph (1), for “Every” substitute “Subject to paragraph (2A), every”;

(b) at the beginning of paragraph (2), for “Unless” substitute “Subject to paragraph (2A), unless”;

(c) after paragraph (2), insert—

“(2A) In the case of a deduction order appeal, the appeal will be a re-hearing, unless the appeal court orders otherwise.”;

(d) in paragraph (3), after “court below” insert “or, in a deduction order appeal, the order or decision of the Commission”; and

(e) for sub-paragraph (b) of paragraph (3), substitute—

“(b) unjust because of a serious procedural or other irregularity in—

(i) the proceedings in the court below; or

(ii) the making of an order or decision by the Commission.”.

18.  In Appendix 1, for Forms C13A, C19, C28, FL401 substitute the forms set out in Schedule 1.

19.  In Appendix 1, for Form FL401A, substitute the form set out in Schedule 2.

20.  In Appendix 3, in the second entry—

(a) in column (i), after “4(3),” insert “4ZA(1)(c), 4ZA(6),”; and

(b) in column (iv), for “the father of the child if he”, substitute “the father or parent (being a woman who is a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008) of the child if that person”.

Mark Potter,P

Duncan Adam

Bruce Edgington

Angela Finnerty

Charles Hyde

David Salter

Philip Waller

I allow these Rules

Bridget Prentice

Parliamentary Under Secretary of State

Ministry of Justice

21st July 2009

Rule 18

SCHEDULE 1

Rule 19

SCHEDULE 2

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules amend the Family Proceedings Rules 1991 (“the 1991 Rules”).

Rule 4 amends rule 3.14 which relates to an application for a declaration of legitimacy or legitimation. The rule is amended to avoid reference to ‘maiden name’. Details must be given of any change of name of the petitioner’s mother and this will include a change of name on entry into a civil partnership.

Rules 5 to 8 and 20, and the substitution of Form FL401 in rule 18, are consequential on the coming into force of certain provisions of the Human Fertilisation and Embryology Act 2008 (c.22) (the “2008 Act”). Rules 8 and 20(b) are consequential on sections 35 to 43 of the 2008 Act which set out when a man is the father or a woman (not being the mother) is a parent of a child in cases of assisted reproduction.

Rules 5 to 7 and 20(a) are consequential on changes made to section 2 of and the insertion of section 4ZA into the Children Act 1989 (c.41) (“the 1989 Act”) by the 2008 Act. The amended section 2 provides that a woman who is a parent by virtue of section 42 of the 2008 Act has parental responsibility for the child. It further provides for when a woman who is a parent by virtue of section 43 of the 2008 Act has or may acquire parental responsibility. Rules 5 to 7 and 20(a) ensure that the procedure in relation to applications under section 4ZA (acquisition of parental responsibility by second female parent) mirror that in relation to applications under section 4 (acquisition of parental responsibility by father). The opportunity is also taken to include references where applicable to section 4A (acquisition of parental responsibility by step-parent).

Section 4 of the notes to Form FL401 has been updated to reflect the amendments to section 2 of the 1989 Act in relation to parental responsibility.

Rules 3 and 9 to 17 amend the rules relating to the process for appeals against a regular deduction order made under section 32A of the Child Support Act 1991 (c. 48) (“the Act”), a lump sum deduction order made under section 32F of the Act, a decision of the Child Maintenance and Enforcement Commission (“the Commission”) on an application for a review of a regular deduction order and a refusal of consent to disapply sections 32G(1) and 32H(2)(b) of the Act by the Commission (“deduction order appeals”). These appeals against orders and decisions made by the Commission are to come to a county court in accordance with regulation 25AB of the Child Support (Collection and Enforcement) Regulations 1992 (S.I. 1992/1989).

These Rules amend Rules 8.A1, 8.2, 8.2A, 8.2B, 8.2C, 8.2E, 8.2F and 8.2G of the 1991 Rules and insert a new rule 8.2FF (appeal court’s powers: deduction order appeals).

Rule 3 amends the entries in the Arrangement of Rules to the 1991 Rules to refer to the new 8.2FF and for rule 8.2 to include deduction order appeals to a county court and appeals from a district judge to a judge relating to deduction order appeals.

Rule 9 substitutes a new rule 8.A1 of the 1991 Rules. The new rule contains revised definitions of “the court below” and “the appeal court” and additonal definitions of “the Commission” and “deduction order appeal”. It also makes provision for determining the appellant and respondent in deduction order appeals.

Rule 10 amends the heading to rule 8.2 of the 1991 Rules in the same way as the Arrangement of Rules. The other amendments to this rule include provision for deduction order appeals and appeals from a district judge to a judge of the court in which the decision was made relating to a deduction order appeal to be added to the list of appeals to which rules 8.2A to 8.2H apply.

Rule 11 amends rule 8.2A of the 1991 Rules to make provision for the time limit for appealing in deduction order appeals. It also makes provision for the documents to be served on the Commission and any other respondent by the appellant and the provision of information and evidence by the Commission to the court and the other parties to the appeal within a specified time.

Rule 12 amends rule 8.2B of the 1991 Rules setting out the contentions which may be made by a respondent and the Commission as respondent to the appeal and the procedure for doing so.

Rule 13 amends rule 8.2C of the 1991 Rules. The provisions of this rule exclude an appeal under section 32F of the Act from the scope of the rule which provides for an appeal not to operate as a stay of proceedings on the order or decision appealed against.

Rule 14 amends rule 8.2E of the 1991 Rules to add the hearing of deduction order appeals to the powers of a district judge.

Rule 15 amends rule 8.2F of the 1991 Rules to provide that the rule does not apply to deduction order appeals. In addition, an amendment is made excluding the court’s power to make orders for payment of interest where there is an appeal against the decision of a district judge in proceedings relation to a deduction order appeal.

Rule 16 inserts a new rule 8.2FF (appeal court’s powers: deduction order appeals). The new rule sets out the powers of the court in deduction order appeals.

Rule 17 amends rule 8.2G of the 1991 Rules to provide that deduction order appeals are by way of a re-hearing unless the appeal court orders otherwise.

Rule 18 substitutes a number of forms in Appendix 1 to the 1991 Rules in the light of amendments made to those forms. Form FL401 is referred to above.

Form C13A (supplement for an application for a special guardianship order) is amended in consequence of the new section 14A(5)(e) of the 1989 Act inserted by section 38 of the Children and Young Persons Act 2008 (c.23). This permits a relative with whom the child has lived for at least one year immediately preceding the application to apply for a special guardianship order without the leave of the court.

Form C19 (warrant of assistance) is amended to remove the reference to section 33 of the Adoption Act 1976 (c.36) which is no longer needed. The opportunity is taken to insert references to the 1989 Act in section 3 of the form where appropriate.

Form C28 (warrant to assist a person to gain access to a child or entry to premises) is amended in consequence of section 79 (power of constable to assist in exercise of powers of entry) of the Childcare Act 2006 (c.21). The form now refers to section 79 and, in relation to the exercise of powers in England, to section 77 of the Childcare Act 2006. The form also makes provision for a warrant under section 102 of the 1989 Act and, in relation to the exercise of powers in Wales, under section 79U of that Act. References to section 76(2) of the 1989 Act and section 33 of the Adoption Act 1976 have been removed as they are no longer needed.

Section 4 of the notes to Form FL401 (application for a non-molestation order/an occupation order) has been revised to reflect changes made to section 2 of and the insertion of section 4ZA into the 1989 Act by the 2008 Act. The amended section 2 provides that a woman who is a parent by virtue of section 42 of the 2008 Act has parental responsibility for the child. It further provides for when a woman who is a parent by virtue of section 43 of the 2008 Act has or may acquire parental responsibility.

Rule 19 substitutes Form FL401A. The form is amended in consequence of the Lord Chancellor’s specification of a local authority as a relevant third party under section 63C(2)(b) of the Family Law Act 1996 (c.27). A relevant third party may apply for a forced marriage protection order without the leave of the court.

(1)

1984 c.42. Section 40(1) was amended by section 125(3) of and paragraph 50 of Schedule 18 to the Courts and Legal Services Act 1990 (c.41) and section 15(1) of and paragraphs 379 and 380 of Schedule 4 to the Constitutional Reform Act 2005 (c.4) and will be repealed (on a date to be appointed) by section 109(1) of and paragraph 278 of Schedule 8 to and Schedule 10 to, the Courts Act 2003 (c.39).

(2)

S.I. 1991/1247. Relevant amending instruments are S.I. 1991/2113, 1992/2067, 1994/2165 and 3155, 2001/821, 2003/184 and 2839, 2004/3375, 2005/617 and 2922, 2007/2187, 2008/2446 and 2861 and 2009/636.

(3)

2008 c.22 .

(4)

S.I. 1992/1989. Relevant amending instrument is S.I. 2009/1815.