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

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.