The Family Procedure (Modification of Enactments) Order 2011

EXPLANATORY NOTE

(This note is not part of the Order)

The Family Procedure Rules 2010 (S.I. 2010/2955) (“the FPR”) provide a new code for the practice and procedure in family proceedings in the High Court, county courts and magistrates’ courts and supersede existing rules of court for family proceedings.

This Order provides for modifications and amendments to primary and secondary legislation in relation to provisions made in Family Procedure Rules.

Part 2 (Article 2) provides for modification of relevant enactments enabling certain new terminology adopted in the FPR to be applied to the existing statutory provisions, where appropriate.

Part 3 provides for amendments to primary legislation. In particular—

Article 3 amends the Courts Act 1971 (c. 23) to enable Part 28 of the FPR relating to costs to apply to all family proceedings where an application is not proceeded with;

Articles 5, 6(b) (in so far as it relates to the insertion of section 54(4) of the Magistrates’ Courts Act 1980 (c.43) (“the 1980 Act”)), 7 to 9, 11 and 14 amend the 1980 Act to provide for the procedure in Family Procedure Rules to apply to all family proceedings when appropriate;

Article 6(a) and (b) (in so far as it relates to the insertion of section 54(3) of the 1980 Act) makes provision for family proceedings in magistrates’ courts to be stayed;

Article 10 amends the 1980 Act to make provision for costs to be awarded in all family proceedings and so aligns magistrates’ courts’ powers to award costs in family proceedings with the powers of the High Court and county courts;

Article 12 amends the 1980 Act to make provision for discovery against a non-party in family proceedings;

Article 13 amends the 1980 Act to enable a justice of the peace, in family proceedings, to issue a witness summons;

Article 15 amends the Sexual Offences Act 2003 (c.42) to include provision in respect of a children’s guardian appointed under the FPR and the Family Procedure (Adoption) Rules 2005.

Part 4 provides for amendments to secondary legislation. In particular—

Articles 16 to 37 provide for amendments consequential upon Family Procedure Rules and the coming into force of section 75 of the Courts Act 2003 (c.39). Where enactments refer to rules of court, or particular provisions within rules of court, which are superseded by the FPR, references are inserted instead to the FPR, or the particular superseding provisions of the FPR. References to the superseded rules, or provisions, are omitted where appropriate;

Article 38 makes provision for a consequential amendment to article 15(1) of the Allocation and Transfer of Proceedings Order 2008 (S.I. 2008/2836). Article 15 of that Order deals with transfer of proceedings from magistrates’ courts to a county court and article 15(1) in particular sets out criteria the court considers when considering transfer. The amendment removes the reference to the exercise of the power to transfer where there is a real risk that a party to proceedings may lack mental capacity within the meaning of the Mental Capacity Act 2005 as the FPR now make provision (in Part 15) for protected parties in relation to all three levels of court including the magistrates’ courts.

Article 39 contains transitional provisions.