The Magistrates’ Courts (Enforcement or Variation of Orders Made in Family Proceedings and Miscellaneous Provisions) Rules 2011

PART 5 PROCEEDINGS UNDER THE 1972 ACT

CHAPTER 1 PROCEEDINGS UNDER PART 1 OF THE 1972 ACT

Interpretation

49.—(1) In this Chapter—

“Hague Convention Country” means a country listed in Schedule 1 to the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1993(1);

“payee”, in relation to a maintenance order, means the person eligible to receive the payments for which the order provides;

“payer”, in relation to a maintenance order, means the person liable to make the payments for which the order provides; and

“reciprocating country” means a country to which Part 1 of the 1972 Act extends.

(2) In this Chapter, an expression defined in the 1972 Act has the meaning given to it in that Act.

Confirmation of a provisional order made in a reciprocating country

50.—(1) The FPR as modified by paragraph (2) shall apply to proceedings in a magistrates’ court for the confirmation of a provisional order made in a reciprocating country varying a maintenance order to which section 5(5) or 9(6) of the 1972 Act(2) applies.

(2) The modification is that in rule 34.16, paragraph (6) is omitted.

Consideration of variation of a maintenance order made by a magistrates’ court: Hague Convention Countries

51.—(1) The FPR as modified by paragraph (2) shall apply where—

(a) an application has been made to a magistrates’ court by a payee for the variation of an order to which section 5 of the 1972 Act applies; and

(b) the payer resides in a Hague Convention Country.

(2) The modifications are, in rule 34.17 as substituted by rule 34.27(5)—

(a) in the heading, after “Consideration of” insert “variation or”; and

(b) in paragraph (1)(a), after “for the” insert “variation or”.

Consideration of variation of a maintenance order made by a magistrates’ court: United States of America

52.—(1) The FPR as modified by paragraph (2) shall apply where—

(a) an application has been made to a magistrates’ court by a payee for the variation of an order to which section 5 of the 1972 Act applies; and

(b) the payer resides in the United States of America.

(2) The modifications are, in rule 34.17 as substituted by rule 34.28(5)—

(a) in the heading, after “Consideration of” insert “variation or”; and

(b) in paragraph (1)(a), after “for the” insert “variation or”.

Notification of variation of a maintenance order by a magistrates’ court

53.—(1) The FPR as modified by paragraph (2) shall apply where a magistrates’ court makes an order—

(a) not being a provisional order, varying a maintenance order to which section 5 of the 1972 Act applies;

(b) under section 9 of the 1972 Act, varying a registered order.

(2) The modifications are, in rule 34.19—

(a) in the heading, after “confirmation” insert “, variation”;

(b) in paragraph (1)(a) and (b), before “revoking” insert “varying or”;

(c) in paragraph (2), after “making,” insert “variation,”; and

(d) omit paragraph (3).

Notification of proceedings in a Hague Convention Country or in the United States of America

54.—(1) This rule applies where the designated officer receives from the Lord Chancellor notice of the institution of proceedings, including notice of the substance of the claim, in a Hague Convention Country or in the United States of America in relation to the making, variation or revocation of a maintenance order.

(2) If it appears to the designated officer that the person against whom the proceedings were instituted is residing within the local justice area for which the court acts, the designated officer must serve the notice on that person by sending it by recorded delivery addressed to that person at that person’s last known or usual address.

(3) If it appears to the designated officer that the person concerned is not residing within the area, the court officer must inform the Lord Chancellor and return the notice.

CHAPTER 2 PROCEEDINGS UNDER PART 2 OF THE 1972 ACT

Interpretation

55.  In this Chapter—

(a) “convention country” means a country or territory specified in an Order in Council made under section 25 of the 1972 Act; and

(b) an expression defined in the 1972 Act has the meaning given to it in that Act.

Dismissal of an application under section 27A of the 1972 Act or application for variation

56.—(1) Where a magistrates’ court dismisses an application under—

(a) section 27A of the 1972 Act(3) (application for recovery of maintenance); or

(b) an application by a person in a convention country for the variation of a registered order,

the designated officer must send a written notice of the court’s decision to the Lord Chancellor.

(2) The notice referred to in paragraph (1) must include a statement of the justices’ reasons for their decision.

Application for recovery of maintenance in England and Wales: section 27B of the 1972 Act

57.—(1) Where a designated officer receives an application for the recovery of maintenance in England and Wales sent from the Lord Chancellor to a magistrates’ court under section 27B of the 1972 Act(4)—

(a) the justices’ clerk must fix the date, time and place for a hearing or a directions appointment, allowing sufficient time for service under this rule to be effected at least 21 days before the date so fixed; and

(b) the designated officer must serve copies of the application and any accompanying documents, together with a notice stating the date, time and place so fixed, on the respondent.

(2) Within 14 days of service under this rule, the respondent must file an answer to the application in the form referred to in the Forms Practice Direction.

Application under section 26(1) or (2) of the 1972 Act and certificate under section 26(3A) of the 1972 Act: registration

58.  Where—

(a) an application under section 26(1) or (2) of the 1972 Act; or

(b) a certificate under section 26(3A)(5) of the 1972 Act,

is required to be registered in a magistrates’ court in pursuance of the Recovery of Maintenance (United States of America) Order 2007(6), the designated officer must enter a minute or memorandum of the application or certificate in the register.

Registration of an order: sections 27C(7) and 32(2), (3) and (6) of the 1972 Act

59.—(1) Where a magistrates’ court makes an order which is required under section 27C(7)(7) of the 1972 Act to be registered, the justices’ clerk must enter a minute or memorandum of the order in the register.

(2) Where a designated officer in pursuance of section 32(2) or (3) of the 1972 Act(8) receives a certified copy of an order, the officer must register the order in the officer’s court by means of a minute or memorandum in the register.

(3) Every minute or memorandum entered in pursuance of paragraph (1) or (2) must specify the section and subsection of the 1972 Act under which the order in question is registered.

(4) Where a designated officer registers an order in pursuance of section 27C(7) or 32(2) or (3) of the 1972 Act, the designated officer must send written notice to the Lord Chancellor that the order has been duly registered.

(5) Where a designated officer is required by section 32(6) of the 1972 Act to give notice of the registration of an order, the designated officer will do so by sending written notice to the officer specified in that subsection that the order has been duly registered.

Payments made to a designated officer

60.—(1) A designated officer to whom payments are made by virtue of section 27C, section 33(3A) or section 34A of the 1972 Act(9) must send those payments by post to such person or authority as the Lord Chancellor may from time to time direct.

(2) Subject to paragraph (3), where it appears to a designated officer to whom payments under a registered order are made that any sums payable under the order are in arrear, the designated officer may proceed in the designated officer’s own name for the recovery of those sums.

(3) Where it appears to the designated officer referred to in paragraph (2) that sums payable under the order are in arrear to an amount equal—

(a) in the case of payments to be made monthly or less frequently, to twice the sum payable periodically; or

(b) in any other case, to four times the sum payable periodically,

the designated officer must proceed in the designated officer’s own name for the recovery of those sums, unless it appears to the designated officer that it is unreasonable in the circumstances to do so.

Method of payment

61.—(1) This rule applies where the court exercises its duties or powers under section 27C, 33(3A) or 34A of the 1972 Act.

(2) Where the court orders that payments under the order are to be made by a particular means—

(a) the justices’ clerk will record on the copy of the order the means of payment which the court has ordered; and

(b) the designated officer will notify in writing, as soon as practicable, the person liable to make the payments under the order, how payments are to be made.

(3) Paragraph (4) applies where the court orders that payments be made to the designated officer for the court, or to the designated officer for any other magistrates’ court, by a method of payment falling within section 59(6) of the 1980 Act(10).

(4) The designated officer for the court to whom the payments are to be made must notify the person liable to make the payments under the order of sufficient details of the account into which the payments should be made to enable payments to be made into that account.

Variation of method of payment

62.—(1) This rule applies where, under section 34A(4) of the 1972 Act, the designated officer receives an application from an interested party for the method of payment to be varied.

(2) As soon as practicable, the designated officer must notify in writing the interested party who made the application and, where practicable, any other interested party, of the result of the application, including any decision to refer the matter to the court.

(3) Where the justices’ clerk grants the application, the justices’ clerk must record the variation on the copy of the order.

Application under section 34 of the 1972 Act: variation or revocation

63.—(1) This rule applies in relation to an application under section 34 of the 1972 Act(11) for the variation or revocation of a registered order.

(2) An application which is made directly to the registering court must be filed in the form referred to in the Forms Practice Direction.

(3) Where the designated officer receives an application, either filed in accordance with paragraph (2) or sent from the Lord Chancellor under section 34(3) of the 1972 Act—

(a) the justices’ clerk must set the date, time and place for a hearing or a directions appointment; and

(b) the designated officer must notify the applicant of that date, time and place.

Application under section 35 of the 1972 Act: variation or revocation

64.—(1) This rule applies in relation to an application under section 35 of the 1972 Act(12) for the variation or revocation of a registered order.

(2) Notice under section 35(3)(b) of the 1972 Act of the time and place appointed for the hearing of the application must be in the form specified in Schedule 3.

(3) The notice referred to in paragraph (2) must be sent by post by the designated officer to the Lord Chancellor for onward transmission to the appropriate authority in the convention country in which the respondent is residing.

(4) The time appointed for the hearing of the application must not be less than six weeks later than the date on which the notice referred to in paragraph (2) is sent to the Lord Chancellor.

Request under section 38(1) of the 1972 Act to a magistrates’ court

65.—(1) This rule applies where a magistrates’ court receives from the Lord Chancellor a request under section 38(1) of the 1972 Act (taking evidence at the request of a court in a convention country) to take the evidence of any person.

(2) Subject to paragraph (3)—

(a) the evidence must be taken in the same manner as if the person concerned were a witness in proceedings on a complaint;

(b) any oral evidence so taken must be put into writing and read to the person who gave it, who must be required to sign the document; and

(c) the justices by whom the evidence of any person is so taken must certify at the foot of any document setting out the evidence of, or produced in evidence by, that person that such evidence was taken, or document received in evidence, as the case may be, by them.

(3) Where the request referred to in section 38(1) of the 1972 Act includes a request that the evidence be taken in a particular manner, the court by which the evidence is taken must, so far as circumstances permit, comply with that request.

Request under section 38(1) of the 1972 Act to a designated officer

66.—(1) This rule applies where a designated officer receives from the Lord Chancellor a request under section 38(1) of the 1972 Act to take the evidence of any person.

(2) Subject to paragraph (3)—

(a) the person whose evidence is to be taken must be examined on oath by or before a justices’ clerk;

(b) any oral evidence must be put into writing and read to the person who gave it, who must be required to sign the document; and

(c) the justices’ clerk must certify at the foot of any document setting out the evidence of, or produced by, that person, that such evidence was taken, or document received in evidence, as the case may be, by that justices’ clerk.

(3) Where the request referred to in section 38(1) of the 1972 Act includes a request that the evidence be taken in a particular manner, the justices’ clerk by whom the evidence is taken must, so far as circumstances permit, comply with that request.

(4) For the purposes of this rule, a justices’ clerk has the same power to administer oaths as a single justice of the peace.

Onward transmission of documents

67.  Any document mentioned in paragraph (2)(c) of rule 65 or 66 must be sent to the Lord Chancellor for onward transmission to the appropriate authority in the convention country in which the request referred to in section 38(1) of the 1972 Act originated.

Procedural rules: proceedings pursuant to rules 57 and 63

68.—(1) Schedule 4 applies to proceedings pursuant to rules 57 and 63.

(2) In Schedule 4 as it applies to rule 57, “the resident party” and “the non-resident party” are to be taken mean the respondent and the applicant respectively.

(3) In Schedule 4 as it applies to rule 63, “the resident party” and “the non-resident party” are to be taken to mean the payer and the payee under the order in question respectively.

(1)

S.I. 1993/593. Relevant amending instruments are S.I. 1994/1902, 1999/1318, 2001/2567 and 2002/2838.

(2)

Sections 5 and 9 are modified for specified purposes by S.I. 1993/593 and 594, 1995/2709 and 2007/2005.

(3)

Section 27A was inserted by section 1(2) of and paragraph 13 of Part 2 of Schedule 1 to the Maintenance Orders (Reciprocal Enforcement) Act 1992 (c.56). Part 2 of the 1972 Act applies with modifications to the United States of America by virtue of S.I. 2007/2006.

(4)

Section 27B was inserted by section 1(2) of and paragraph 13 of Part 2 of Schedule 1 to the Maintenance Orders (Reciprocal Enforcement) Act 1992 and was amended by S.I. 1995/756 and by section 109(1) of and paragraph 159 of Schedule 8 to the Courts Act 2003.

(5)

Section 26(3A) was inserted, in respect of specified cases, by S.I. 2007/2006.

(6)

S.I. 2007/2006.

(7)

Section 27C was inserted by section 1(2) of and paragraph 13 of Part 2 of Schedule 1 to the Maintenance Orders (Reciprocal Enforcement) Act 1992 and was amended by section 109(1) of and paragraph 160(1) and (3) of Schedule 8 to the Courts Act 2003.

(8)

Section 32(2) was amended by section 90(1) of and paragraphs 71 and 79(1) and (2) of Schedule 13 to the Access to Justice Act 1999.

(9)

Section 33(3A) was inserted by section 10 of and paragraph 18 of Schedule 1 to the Maintenance Enforcement Act 1991. Section 34A was inserted by section 10 of and paragraph 19 of Schedule 1 to the Maintenance Enforcement Act 1991 and was amended by section 109(1) of and paragraph 163 of Schedule 8 and Schedule 10 to the Courts Act 2003.

(10)

Section 59(6) was substituted by section 2 of the Maintenance Enforcement Act 1991.

(11)

Section 34 was amended by sections 60(2) and 89 of the Domestic Proceedings and Magistrates’ Courts Act 1978, sections 45 and 46(4) of and paragraph 1(3) of Schedule 3 to the Legal Aid (Scotland) Act 1986 (c.47), section 10 of and paragraph 19 of Schedule 1 to the Maintenance Enforcement Act 1991, section 1(2) of and paragraph 15 of Part 2 of Schedule 1 to the Maintenance Orders (Reciprocal Enforcement) Act 1992, section 90(1) of and paragraphs 71 and 81 of Schedule 13 to the Access to Justice Act 1999, section 109(1) of and paragraph 162 of Schedule 8 to the Courts Act 2003 and by S.I. 1995/755.

(12)

Section 35 was substituted by section 1(2) of and paragraph 16 of Part 2 of Schedule 1 to the Maintenance Orders (Reciprocal Enforcement) Act 1992 and amended by S.I. 1993/1576 (N.I. 6).