The Family Proceedings (Amendment) Rules 2001

Explanatory Note

(This note is not part of the Rules)

These Rules amend the Family Proceedings Rules 1991 following the establishment of the Children and Family Court Advisory and Support Service (‘CAFCASS’) by the Criminal Justice and Court Services Act 2000. The term ‘guardian ad litem’ is replaced in proceedings under the Children Act 1989 by ‘children’s guardian’, and in proceedings for a parental order under section 30 of the Human Fertilisation and Embryology Act 1990 by ‘parental order reporter’. An officer of the service who is appointed under section 7(1)(a) of the Children Act 1989 (c. 41) is called a ‘children and family reporter’. A person appointed by a local authority under section 7(1)(b) of that Act will continue to be known as a welfare officer.

The Rules permit more than one children’s guardian to be appointed if the court considers it appropriate. They set out clearly the powers and duties of officers of the service. The provisions relating to disclosure of documents have been amended to facilitate inspection of CAFCASS and also to allow disclosure where this would assist an officer of the service to perform any of his functions. They also permit disclosure within CAFCASS save where a conflict of interest arises and disclosure without the leave of the court to an expert whose instruction by a party has been authorised by the court.

Provision is also made for the court to appoint an officer of the service to act as guardian for a child where the court feels the child ought to be made a party in any family proceedings. The court may also continue to appoint the Official Solicitor as guardian for this purpose if he consents.

The Rules amend the Family Proceedings Rules 1991 to prescribe the procedure for applications under section 55A of the Family Law Act 1986 (declarations of parentage). This section was introduced by section 83 of the Child Support, Pensions and Social Security Act 2000 and replaces section 56(1)(a) of the Family Law Act 1986. The procedure is similar to the existing procedure but takes account of the greater number of categories of people who may apply for declarations of parentage. The Rules remove the requirement for the papers to be sent to the Attorney General in every case. They also bring up to date certain references in child support legislation.

These Rules amend the Family Proceedings Rules 1991 to transfer the administrative functions of justices' clerks under the Rules to justices' chief executives in line with section 90 of, and Schedule 13 to, the Access to Justice Act 1999 (the “1999 Act”) which make corresponding amendments to primary legislation. In particular, rules 7.23, 7.25, 7.26, 7.27 and 7.29 are consequential on amendments to the Maintenance Orders Act 1950 and the Maintenance Orders Act 1958 effected by paragraphs 12 to 15 and 25 to 31 of Schedule 13 to the 1999 Act.

Subsection (5) of section 90 of the 1999 Act provides that for the purposes of that section the administrative functions of justices' clerks are all their functions apart from those which are legal functions within the meaning given by section 48(2) of the Justices of the Peace Act 1997, as substituted by section 89(1) of the 1999 Act.

These Rules also amend the Family Proceedings Rules 1991 to give effect to Council Regulation (EC) No. 1347/2000 of 29th May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (the “Council Regulation”).

In particular, rule 2.27A provides for district judges to consider whether matrimonial proceedings should be stayed under Article 11 (“Lis pendens and dependent actions”) of the Council Regulation or to refer the matter to a judge. Article 11 regulates the situation where there are concurrent matrimonial proceedings in more than one State of the European Union to which the Council Regulation applies.

The new Chapter 5 in Part VII provides a procedure for the registration and enforcement of judgments under the Council Regulation. The new procedure covers, among other matters, the evidence to be provided in support of an application for the registration of a foreign order, requirements relating to orders for, and notices of, registration and requirements relating to matrimonial decrees and orders made by courts in England and Wales whose enforcement abroad is sought under the Council Regulation.

The amendments to Form M5 (Notice of proceedings), Form M6 (Acknowledgement of service) and Appendix 2 (Contents of petition) are consequential upon the amendments to the jurisdiction of the court effected by the Council Regulation.

These Rules also make other minor amendments to the Family Proceedings Rules 1991.