The Family Proceedings Courts (Miscellaneous Amendments) (No.2) Rules 2009

Statutory Instruments

2009 No. 2025 (L. 21)

Magistrates’ Courts, England And Wales

The Family Proceedings Courts (Miscellaneous Amendments) (No.2) Rules 2009

Made

21st July 2009

Laid before Parliament

22nd July 2009

Coming into force

1st September 2009

The Lord Chief Justice, with the concurrence of the Lord Chancellor, after having consulted the rule committee appointed under section 144(A1) of the Magistrates’ Courts Act 1980(1), makes the following Rules in exercise of the powers conferred by section 144 of the Magistrates’ Courts Act 1980:

Citation and commencement

1.  These Rules may be cited as the Family Proceedings Courts (Miscellaneous Amendments) (No.2) Rules 2009 and come into force on the 1^st September 2009.

Amendment to the Family Proceedings Courts (Children Act 1989) Rules 1991

2.  The Family Proceedings Courts (Children Act 1989) Rules 1991(2), are amended in accordance with rules 3 to 8.

3.  In rule 2.5(c), after “4(3)(b),” insert “4ZA(6)(b),”.

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

5.  In rule 9, after “4(1)(c)”, insert “,4ZA(1)(c) or 4A(1)(b)”.

6.  In rule 21A, 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)”.

7.  In Schedule 1, for Forms C13A, C19 and C28, substitute the forms set out in Schedule 1 to these Rules.

8.  In Schedule 2, 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”.

Amendment to the Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991

9.  In Schedule 1 to the Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991(4), for Form FL401 substitute the form set out in Schedule 2 to these Rules.

Lord Judge,C.J.

I concur

Bridget Prentice

Parliamentary Under Secretary of State

Ministry of Justice

21st July 2009

Rule 7

SCHEDULE 1

Rule 9

SCHEDULE 2

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules amend the Family Proceedings Courts (Children Act 1989) Rules 1991 and the Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991.

The amendments, with the exception of rule 7, are consequential on the coming into force of certain provisions of the Human Fertilisation and Embryology Act 2008 (c.22) (the “2008 Act”). Rules 6 and 8(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 3 to 5 and 8(a), are consequential upon 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 3 to 5 and 8(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).

Rule 9 substitutes Form FL401 (application for a non-molestation order/an occupation order) in Schedule 1 to the Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991. Section 4 of the notes to the form has been updated to reflect the amendments to section 2 of the 1989 Act in relation to parental responsibility.

Rule 7 substitutes various forms in Schedule 1 to the Family Proceedings Courts (Children Act 1989) Rules 1991 in the light of amendments made to those forms.

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.

(1)

1980 c.43. Section 144 was amended by section 125(3) of and paragraph 25 of Schedule 18 to the Courts and Legal Services Act 1990 (c.41), section 78(2) of and paragraphs 26 and 29 of Schedule 11 to the Access to Justice Act 1999 (c.22), section 109(1) and (3) of and paragraph 245 of Schedule 8 and Schedule 10 to the Courts Act 2003 (c.39), and section 15(1) of and paragraphs 99 and 102 of Schedule 4 to the Constitutional Reform Act 2005 (c.4).

(2)

S.I. 1991/1395. Relevant amending instruments are S.I. 1992/2068, 1994/2166 and 3156, 2001/615 and 818, 2003/2840, 2004/3376, 2005/2930, 2007/2188, 2008/2858 and 2009/637.

(3)

2008 c.22.

(4)

S.I.1991/1991. Relevant amending instruments are S.I. 1997/1894 and 2005/2930.