Statutory Instruments
2009 No. 636 (L. 5)
Family Proceedings
Supreme Court Of England And Wales
County Courts, England And Wales
The Family Proceedings (Amendment) Rules 2009
Made
10th March 2009
Laid before Parliament
12th March 2009
Coming into force
6th April 2009
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. These Rules may be cited as the Family Proceedings (Amendment) Rules 2009 and come into force on 6th April 2009.
Amendments to the Family Proceedings Rules 1991
2. The Family Proceedings Rules 1991(2) are amended in accordance with rules 3 to 16.
3. In the Arrangement of Rules—
(a)in the heading to Part IV, after “Children Act 1989” insert “, etc.”;
(b)omit the entries for rules 4.22, 7.28, 8.1A and 8.1B;
(c)before the entry for rule 8.1 insert—
“8. Interpretation”;
(d)in the entry for rule 8.2, for “Appeals under Domestic Proceedings and Magistrates’ Courts Act 1978” substitute “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”;
(e)after the entry for rule 8.2, insert—
“8.2A Notice of Appeal;
8.2B Respondents;
8.2C Stay;
8.2D Amendment of appeal notice;
8.2E Powers of a district judge;
8.2F Appeal court’s powers;
8.2G Hearing of appeals;
8.2H Appeals from orders made under Parts 4 and 4A of the Family Law Act 1996”.
4. In rule 1.2—
(a)in paragraph (1), in the definition of district registry, omit “,except in rule 4.22(2A),”; and
(b)in paragraph (9)(b), omit “and 8.1A”.
5. In rule 3.13(1), for paragraph (e) substitute—
“(e)where the mother, or alleged mother, of the person whose parentage is in issue has previously been known by different names, if known—
(i)each full name by which she has previously been known; and
(ii)the dates between which she was known by each name;”.
6. In the heading to Part IV, after “Children Act 1989” insert “, etc.”.
7. In rule 4.1(2)—
(a)at the end of sub-paragraph (h), omit “or”;
(b)at the end of sub-paragraph (i), insert “or”; and
(c)after sub-paragraph (i), insert—
“(j)on an application for a warrant under section 79 of the Childcare Act 2006(3).”.
8. In rule 4.4(4)—
(a)at the end of sub-paragraph (d), omit “or”;
(b)at the end of sub-paragraph (e), insert “or”; and
(c)after sub-paragraph (e), insert—
“(f)a warrant under section 79 of the Childcare Act 2006,”.
9. Omit rules 4.22, 7.28, 8.1A and 8.1B.
10. Before rule 8.1, insert—
“Interpretation
8.A.1. References to—
(a)“the court below” in rules 8.2A to 8.2G are references to the court from which, or the person from whom, the appeal lies; and
(b)“the appeal court” in rules 8.2F and 8.2G are to the court to which an appeal is made.”.
11. In rule 8.1,for paragraph (7) substitute—
“(7) This rule does not apply to—
(a)the proceedings referred to in rule 8.2; and
(b)any appeal by a party to proceedings for the assessment of costs against a decision in those proceedings.”.
12. For rule 8.2 substitute—
“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
8.2.—(1) Rules 8.2A to 8.2H apply where—
(a)there is an appeal under—
(i)section 4(7) of the Maintenance Orders Act 1958(4);
(ii)section 29 of the Domestic Proceedings and Magistrates’ Courts Act 1978(5);
(iii)section 60(5) of the Act of 1986(6);
(iv)section 94(1) to (9) of the Act of 1989(7);
(v)section 61 of the Family Law Act 1996(8); or
(vii)any other enactment giving a person a right of appeal against a decision of a magistrates’ court; or
(b)an appeal lies from any decision of a district judge to the judge of the court in which the decision was made in proceedings—
(i)listed in rule 4.1(2); or
(ii)to which Parts 4 and 4A of the Family Law Act 1996 apply.
(2) In proceedings referred to in paragraph (1)(b)(i) and (ii), any party may appeal from an order or decision made or given by the district judge in a county court to a judge on notice and CCR Order 13, rule 1(10) and Order 37, rule 6 shall not apply.
(3) Appeals under paragraph (1)(b) shall be heard in chambers unless the judge directs otherwise.
(4) Rules 8.2A to 8.2H are subject to any enactment.
Notice of appeal
8.2A.—(1) The appellant shall file and serve on—
(a)the parties to the proceedings in the court below;
(b)any children’s guardian; and
(c)where applicable, the local authority that prepared a report under section 14A(8) or (9) of the Act of 1989,
the documents set out in paragraph (2).
(2) The documents referred to in paragraph (1) are—
(a)notice in writing of the appeal, setting out the grounds of the appeal;
(b)a certified copy of the summons or application and of the order appealed against, and of any order staying its execution;
(c)a copy of any notes of the evidence; and
(d)a copy of any reasons given for the decision.
(3) The appellant shall file and serve the notice of appeal in accordance with paragraph (1)—
(a)within 14 days after the determination against which the appeal is brought;
(b)in the case of an appeal against an order under section 38(1) of the Act of 1989, within 7 days after the making of the order;
(c)in the case of an appeal against an order under section 29 of the Domestic Proceedings and Magistrates’ Courts Act 1978, within 21 days after the making of the order; or
(d)with the leave of the court to which, or judge to whom, the appeal is brought, within such other time as that court or judge may direct.
(4) Subject to any direction of the court to which, or judge to whom, the appeal is brought, the appellant shall file and serve the documents mentioned in paragraph (2)(b) to (d) as soon as practicable after filing and service of the notice of appeal under paragraph (1).
(5) Where the magistrates’ court is the court below, the appellant shall serve the documents mentioned in paragraph (2)(a) and (b) on the designated officer for that court.
Respondents
8.2B.—(1) Subject to paragraph (2), a respondent who wishes to contend—
(a)on the appeal that the decision of the court below should be varied, either in any event or in the event of the appeal being allowed in whole or in part;
(b)that the decision of the court below should be affirmed on grounds other than those relied upon by that court; or
(c)by way of cross-appeal that the decision of the court below was wrong in whole or in part,
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 the respondent relies.
(2) No notice under paragraph (1) may be filed or served in an appeal against an order under section 38 of the Act of 1989.
Stay
8.2C. 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.
Amendment of appeal notice
8.2D.—(1) The appellant may amend the appeal notice, without leave, by serving a supplementary notice not less than 7 days before the date of the hearing of the appeal, on each of the persons on whom the notice to be amended was served.
(2) Within 2 days after service of a supplementary notice under paragraph (1) the appellant must file two copies of the notice in the court in which the appeal notice was filed.
(3) Except with the leave of the court hearing the appeal, the appellant may not rely on grounds other than those stated in the notice of appeal or any supplementary notice under paragraph (1).
(4) The court may amend the grounds of appeal or make any other order, on such terms as it thinks just, to ensure the determination on the merits of the real question in controversy between the parties.
Powers of a district judge
8.2E.—(1) A district judge may—
(a)dismiss an appeal to which this rule applies—
(i)for want of prosecution; or
(ii)with the consent of the parties; or
(b)give leave for the appeal to be withdrawn,
and may deal with any question of costs arising out of the dismissal or withdrawal.
(2) Unless the court directs otherwise, any interlocutory application in an appeal under rule 8.2 (1)(a) may be made to a district judge.
Appeal court’s powers
8.2F.—(1) In relation to an appeal the appeal court has all the powers of the court below.
(2) The appeal court has power to—
(a)affirm, set aside or vary any order or judgment made or given by the court below;
(b)refer any application or issue for determination by the court below;
(c)order a new hearing;
(d)make orders for the payment of interest;
(e)make a costs order.
(3) The appeal court may exercise its powers in relation to the whole or part of an order of the lower court.
Hearing of appeals
8.2G.—(1) Every appeal will be limited to a review of the decision of the court below unless—
(a)an enactment makes different provision for a particular category of appeal; or
(b)the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive—
(a)oral evidence; or
(b)evidence which was not before the court below.
(3) The appeal court will allow an appeal where the decision of the court below was—
(a)wrong; or
(b)unjust because of a serious procedural or other irregularity in the proceedings in the court below.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence.
Appeals from orders made under Parts 4 and 4A of the Family Law Act 1996
8.2H. Where an appeal is brought against the making of a hospital order or a guardianship order under the Mental Health Act 1983(9) a copy of any written evidence considered by the magistrates’ court under section 37(1)(10) of the 1983 Act shall be sent by the designated officer to the county court in which the documents relating to the appeal are filed.”.
13. In rule 8.3—
(a)renumber the existing text as paragraph (1);
(b)in paragraph (1), omit “and rule 8.2(4) shall apply, with the necessary modifications, to such proceedings”; and
(c)after paragraph (1), insert—
“(2) On entering the appeal, or as soon as practicable thereafter, the appellant shall, unless otherwise directed, lodge in the principal registry—
(a)three certified copies of the summons and of the order appealed against, and of any order staying its execution;
(b)three copies of the clerk’s notes of the evidence;
(c)three copies of the justices’ reasons for their decision;
(d)a certificate that notice of motion has been duly served on the clerk and on every party affected by the appeal; and
(e)where the notice of motion includes an application to extend the time for bringing the appeal, a certificate (and a copy) by the appellant’s solicitor, or the appellant if he is acting in person, setting out the reasons for the delay and the relevant dates.”.
14. In rule 9.3(1)(a), for “father”, wherever it occurs, substitute “parent”.
15. In Appendix 1, for Forms C19 and C23, substitute the forms set out in the Schedule.
16. In Appendix 3—
(a)at the end of column (i), insert “Section 79 of the Childcare Act 2006”;
(b)in the corresponding entry in column (ii), insert “1 day”; and
(c)in the corresponding entry in column (iii), insert “Any person preventing or likely to prevent Her Majesty’s Chief Inspector of Education, Children’s Services and Skills from exercising a power conferred on him by section 77”.
Transitional provision
17. Where a person has filed a notice of appeal or lodged a notice of motion before these rules come into force, the Family Proceedings Rules 1991 shall apply to those proceedings as if rules 3(b) to (e), 4 and 9 to 13 had not been made.
Mark Potter, P
Duncan Adam
Bruce Edgington
Angela Finnerty
David Salter
Philip Waller
I allow these Rules
Bridget Prentice
Parliamentary Under Secretary of State
Ministry of Justice
10th March 2009
Rule 15
SCHEDULE
EXPLANATORY NOTE
(This note is not part of the Rules)
These Rules amend the Family Proceedings Rules 1991 (“the 1991 Rules”).
Rules 3 and 4 and 9 to 12 amend the rules relating to the process for—
(a)statutory rights of appeal from decisions of a magistrates’ court; and
(b)internal appeals in a county court from a decision of a district judge to a judge in proceedings which are listed in rule 4.1(2) of the 1991 Rules and to which Parts 4 and 4A of the Family Law Act 1996 (c.27) apply.
Rules 8.A1 and 8.2 to 8.H (“the new rules”) which are inserted into the 1991 Rules by these Rules, replace rules 4.22, 7.28, 8.1A and 8.1B of the 1991 Rules and are modelled on those rules, Order 55 of the Rules of the Supreme Court 1965 (S.I. 1965/1776) and rules 180 and 181 of the Family Procedure (Adoption) Rules 2005 (S.I. 2005/2795). The new rules are freestanding and rationalise and modernise the existing rules. A notice of appeal is the common way of commencing the appeals within the scope of the new rules.
In addition, the new rules will be able to accommodate the appeals which are proposed to come to a county court from decisions of a magistrates’ court under the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 (“the draft order”) which has been laid in draft before Parliament. New rule 8.2A(3)(c) changes the time limit for appealing against an order under section 29 of the Domestic Proceedings and Magistrates’ Courts Act 1978 (c.22) from 6 weeks to 21 days so that the time will be in line with the time for appealing against decisions of the magistrates’ court under the proposed new section 111A of the Magistrates’ Courts Act 1980 (c.43) (in article 4(3) of the draft order) on the ground that the decision is wrong in law and in excess of jurisdiction.
In consequence of the new rules, rule 13 adds a new paragraph to rule 8.3 of the 1991 Rules which relates to appeals under section 13 of the Administration of Justice Act 1960 (c.65).
By virtue of rule 17, the new rules will not apply to any appeal in which the appeal notice is filed or notice of motion is lodged before these Rules come into force.
Rule 5 amends rule 3.13(1)(e) of the 1991 Rules to require, on an application for a declaration of parentage, information to be given about any change of name of the mother or alleged mother and not just changes made on marriage. This would include change of name on entry into a civil partnership. This takes account of the fact that, on the coming into force of section 42 of the Human Fertilisation and Embryology Act 2008 (c.22), the existence of a civil partnership entered into by the mother may be a relevant consideration. Rule 14 amends rule 9.3 of the 1991 Rules to provide that where service on a child (who is not also a protected party) could previously be effected on a father it may now be effected on either parent.
Rules 6 to 8 and 16 are consequential on the coming into force of the Childcare Act 2006 (c.21) (“the 2006 Act”). The amendments insert provision to ensure that an application for a warrant by Her Majesty’s Chief Inspector of Education, Children’s Services and Skills under section 79 (power of constable to assist in exercise of powers of entry) of the 2006 Act may be made ex parte, and to specify for such an application the appropriate form, periods of notice and respondents. Rule 15 substitutes a new Form C19 (Warrant of Assistance) which form now refers to an application under section 79 and makes provision for an application under section 102 of the Children Act 1989 (c.41) in relation to the exercise of powers, in Wales, under section 79U of that Act.
Rule 15 also substitutes a new Form C23 (Emergency Protection Order) in consequence of the repeal of section 45(9) of the Children Act 1989 by section 30 of the Children and Young Persons Act 2008 (c.23).
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).
S.I. 1991/1247. Relevant amending instruments are S.I. 1992/2067, 1991/2113, 1994/2165 and 3155, 1997/1893, 2001/821, 2003/184 and 2839, 2005/617 and 2922, 2007/2187 and 2008/2446 and 2861.
Section 4(7) was amended by the Administration of Justice Act 1977 (c.38), section 32, Schedule 5, Part IV.
Section 29 was amended by the Matrimonial and Family Proceedings Act 1984 (c.42), section 46(1), Schedule 1, paragraph 26 and by the Children Act 1989 (c.41), section 108(5), Schedule 13, paragraph 42 and section 108(7), Schedule 15.
Subsection (5) was inserted by the Child Support, Pensions and Social Security Act 2000 (c.19), section 83(1) and (4).
Section 94 was amended by the Courts and Legal Services Act 1990 (c.41), section 116, Schedule 16, Part 1, paragraph 23 and by the Adoption and Children Act 2002 (c.38), section 100.
Section 61 was amended by the Constitutional Reform Act 2005 (c.4), section 15(1), Schedule 4, Part 1, paragraphs 252 and 254.
Section 37(1) was amended by the Crime (Sentences) Act 1997 (c.43), section 55, Schedule 4, paragraph 12(1) and the Criminal Justice Act 2003 (c.44), section 304, Schedule 32, Part 1, paragraphs 37 and 38(a).