2011 No. 633 (L.5)

Magistrates’ Courts, England And Wales

Procedure

The Justices’ Clerks (Amendment) Rules 2011

Made2nd March 2011

Laid before Parliament7th March 2011

Coming into force6th April 2011

The Lord Chancellor makes the following Rules in exercise of the powers conferred by sections 28 and 108(6) of the Courts Act 20031 with the concurrence of the Senior Presiding Judge (as nominee of the Lord Chief Justice2):

In accordance with section 28(9) of that Act the Lord Chancellor has consulted the Criminal Procedure Rule Committee, the Family Procedure Rule Committee and the Magistrates’ Courts Rule Committee.

Citation and commencement

1.

These rules may be cited as the Justices’ Clerks (Amendment) Rules 2011 and shall come into force on 6th April 2011.

Amendments to Justices’ Clerks Rules 2005

2.

The Justices’ Clerks Rules 20053 are amended in accordance with the following rules.

3.

In rule 2, for “the Schedule” substitute “Schedules 1 and 2”.

4.

In rule 3(1)—

(a)

for “paragraphs 1 to 36 and 44 to 71 in the Schedule” substitute “paragraphs 1 to 36 of Schedule 1 and paragraphs 1 to 7 of Schedule 2”; and

(b)

for “reference in the Schedule” substitute “reference in these Rules”.

5.

After rule 3 insert—

“3A.
Where a justices’ clerk—
(a)
is performing the function of a single justice in accordance with paragraphs 1 to 7 of Schedule 2 to these Rules; and
(b)
considers, for whatever reason, that it is inappropriate to perform the function,
the justices’ clerk must refer the matter to the magistrates’ court which may perform the function.”.

6.

In rule 5, for “the Schedule” in paragraphs (a) and (b) substitute “Schedule 1”.

7.

In the Schedule—

(a)

in the heading, for “Schedule” substitute “Schedule 1”;

(b)

omit the heading “Family etc.” after paragraph 36; and

(c)

omit paragraphs 37 to 71.

8.

After the Schedule insert Schedule 2 which is set out in the Schedule to these Rules.

Transitional provisions

9.

Where, by virtue of Part 36 of the Family Procedure Rules 20104, the Family Procedure Rules 2010 do not apply to a particular case, the Justices’ Clerks Rules 2005 shall have effect as if the amendments made to the Justices’ Clerks Rules 2005 by these Rules had not been made.

J Djanogly

Parliamentary Under Secretary of State

Ministry of Justice

28th February 2011

I concur

John Goldring, L.J.

Senior Presiding Judge

2nd March 2011

SCHEDULE

Rule 8

“SCHEDULE 2Family etc.
1.
The transfer of proceedings in accordance with any order made by the Lord Chancellor under Part 1 of Schedule 11 to the Children Act 19895.
2.
The appointment of a children’s guardian or solicitor for a child under section 41 of the Children Act 19896.
3.
The making of an order under section 11(3) or 38(1) of the Children Act 1989 where—
(a)
a previous such order has been made in the same proceedings;
(b)
the terms of the order sought are the same as those of the last such order made; and
(c)
a written request for such an order has been made and—
(i)
the other parties and any children’s guardian consent to the request and they or their legal representatives have signed the request; or
(ii)
at least one of the other parties and any children’s guardian consent to the request and they or their legal representatives have signed the request, and the remaining parties have not indicated that they either consent to or oppose the making of the order.
4.
The issuing of a witness summons under section 97 of the Magistrates’ Courts Act 19807 in family proceedings as defined in section 65 of that Act8.
5.
The request for a welfare report under section 7 of the Children Act 19899.
6.
The determination that a complaint for the revocation, discharge, revival, alteration, variation or enforcement of a magistrates’ court maintenance order be dealt with by a magistrates’ court acting for another local justice area in accordance with the provisions of rule 41 or 59 of the Magistrates’ Courts Rules 198110.
7.
All the functions of a magistrates’ court which a single justice may perform in accordance with rule 2.5 of the Family Procedure Rules 2010 and Practice Directions supplementing those rules except the functions listed in column 2 of the Table in accordance with the rules listed in column 1.
TABLE
8.20(4)
A direction that any person (who is not a child) should be made a respondent to the application for a declaration of parentage under section 55A of the Family Law Act 198611, except where the parties consent to that person (who is not a child) being made a respondent.
12.3(2)
Direction that a person with parental responsibility be made a party except where the parties consent to the person with parental responsibility (who is not a child) being made a party.
12.3(3)
Direction that any person or body be made a party to proceedings or a party be removed except where the parties consent to a person (who is not a child) or body being made a party or to a party (who is not a child) being removed
12.3(4)
Consequential directions following the addition or removal of a party except where a justices’ clerk is able to make such a direction under rule 12.3(2) and (3).
12.14(7)
In relation to a hearing, other than a hearing for directions, if one or more respondents attend the hearing but the applicant does not, refuse the application or if sufficient evidence has previously been received proceed in the absence of the applicant.
12.14(8)
In relation to a hearing, other than a hearing for directions, if neither party attends a hearing, refuse the application.
12.17(2)
Adjournment of proceedings following a direction under section 37(1) of the Children Act 1989.
12.17(4)(b)
Direction for evidence to be served on appropriate authority.
12.17(6)
Direction that a copy of a report under section 37 of the Children Act 198912 need not be served on a party.
12.33(3) (insofar as it relates to r12.33(1)(a))
Power to deal with an application for warning notices without a hearing.
12.34(2)
Consider whether it is necessary for information to be deleted from a copy of a risk assessment before that copy is served on a party or service of a copy of the risk assessment on a party to be delayed for a specified period and give directions accordingly.
13.3(3)
Direction that person with parental responsibility be made a party, except where parties consent to person with parental responsibility (who is not a child) being made a party.
13.3(4)
Direction that any person or body be made a party to proceedings or a party be removed, except where parties consent to a person (who is not a child) or body being made a party or to a party (who is not a child) being removed.
13.3(5)
Consequential directions following the addition or removal of a party, except where a justices’ clerk is able to make such a direction under rule 13.3(3) and (4).
13.21(3)
Permission for the copy of any final order to be sent to any other person.
14.3(3)
Direction that any person or body be made a party to proceedings or a party be removed, except where parties consent to a person (who is not a child) or a body being a party or to a party (who is not a child) being removed.
14.3(4)
Consequential directions following the addition or removal of a party, except where a justices’ clerk is able to make such a direction under rule 14.3(3).
14.6(3)(a)
Direction that the local authority prepare a report giving their reasons for placing the child for adoption.
14.26(3)
Permission for the copy of any final order to be sent to any other person.
16.19
Termination of appointment of children’s guardian.
16.25(1)
Direction that a person may not act as a children’s guardian, termination of an appointment, appointment of a children’s guardian in substitution for an existing one.
16.29(9)
Giving reasons for the termination of an appointment of a solicitor for a child (the justices’ clerk may make a note of such reasons).
18.3(1)(c)
In addition to a direction that a child be made a respondent to an application, a direction that any other person be a respondent to an application under Part 18 except where the parties consent to the person (other than a child) being made a respondent.
27.4(4)
Power of court to refuse the application, other than one for directions, where one or more respondents appear but the applicant does not.
27.4(5)
Power of court to refuse the application, other than one for directions, where neither the applicant nor any respondent appears.
27.10(1)(b)
Direction that the proceedings to which the Rules apply will not be held in private, except that a justices’ clerk may give such a direction in relation to a hearing which that justices’ clerk is conducting.
27.11(2)(g)
Power to permit any other person to be present during any hearing, except that a justices’ clerk may give such permission in relation to a hearing which that justices’ clerk is conducting.
29.15
Specifying alternative date for an order, to take effect except an order which the justices’ clerk has made.
29.16
Correcting an accidental slip or omission in an order except where that order was made by a justices’ clerk.
8.
In this Schedule, “hearing” and “order” have the meanings assigned to them by rule 2.3 of the Family Procedure Rules 2010.”

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules amend the Justices’ Clerks Rules 2005 (S.I. 2005/545) (“the 2005 Rules”). Rule 5 inserts a new rule 3A in the 2005 Rules to provide that where a justices’ clerk is performing certain functions and considers it inappropriate to perform those functions, the justices’ clerk must refer the matter to a magistrates’ court.

Rule 8 and the Schedule insert a new Schedule 2 to the 2005 Rules to specify which of the functions which are authorised to be done to, by or before a single justice of the peace may be done to, by or before a justices’ clerk.

Rules 3, 4, 6 and 7 make consequential amendments to the 2005 Rules and transitional provision is made in rule 9.

8.20(4)	A direction that any person (who is not a child) should be made a respondent to the application for a declaration of parentage under section 55A of the Family Law Act 198611, except where the parties consent to that person (who is not a child) being made a respondent.
12.3(2)	Direction that a person with parental responsibility be made a party except where the parties consent to the person with parental responsibility (who is not a child) being made a party.
12.3(3)	Direction that any person or body be made a party to proceedings or a party be removed except where the parties consent to a person (who is not a child) or body being made a party or to a party (who is not a child) being removed
12.3(4)	Consequential directions following the addition or removal of a party except where a justices’ clerk is able to make such a direction under rule 12.3(2) and (3).
12.14(7)	In relation to a hearing, other than a hearing for directions, if one or more respondents attend the hearing but the applicant does not, refuse the application or if sufficient evidence has previously been received proceed in the absence of the applicant.
12.14(8)	In relation to a hearing, other than a hearing for directions, if neither party attends a hearing, refuse the application.
12.17(2)	Adjournment of proceedings following a direction under section 37(1) of the Children Act 1989.
12.17(4)(b)	Direction for evidence to be served on appropriate authority.
12.17(6)	Direction that a copy of a report under section 37 of the Children Act 198912 need not be served on a party.
12.33(3) (insofar as it relates to r12.33(1)(a))	Power to deal with an application for warning notices without a hearing.
12.34(2)	Consider whether it is necessary for information to be deleted from a copy of a risk assessment before that copy is served on a party or service of a copy of the risk assessment on a party to be delayed for a specified period and give directions accordingly.
13.3(3)	Direction that person with parental responsibility be made a party, except where parties consent to person with parental responsibility (who is not a child) being made a party.
13.3(4)	Direction that any person or body be made a party to proceedings or a party be removed, except where parties consent to a person (who is not a child) or body being made a party or to a party (who is not a child) being removed.
13.3(5)	Consequential directions following the addition or removal of a party, except where a justices’ clerk is able to make such a direction under rule 13.3(3) and (4).
13.21(3)	Permission for the copy of any final order to be sent to any other person.
14.3(3)	Direction that any person or body be made a party to proceedings or a party be removed, except where parties consent to a person (who is not a child) or a body being a party or to a party (who is not a child) being removed.
14.3(4)	Consequential directions following the addition or removal of a party, except where a justices’ clerk is able to make such a direction under rule 14.3(3).
14.6(3)(a)	Direction that the local authority prepare a report giving their reasons for placing the child for adoption.
14.26(3)	Permission for the copy of any final order to be sent to any other person.
16.19	Termination of appointment of children’s guardian.
16.25(1)	Direction that a person may not act as a children’s guardian, termination of an appointment, appointment of a children’s guardian in substitution for an existing one.
16.29(9)	Giving reasons for the termination of an appointment of a solicitor for a child (the justices’ clerk may make a note of such reasons).
18.3(1)(c)	In addition to a direction that a child be made a respondent to an application, a direction that any other person be a respondent to an application under Part 18 except where the parties consent to the person (other than a child) being made a respondent.
27.4(4)	Power of court to refuse the application, other than one for directions, where one or more respondents appear but the applicant does not.
27.4(5)	Power of court to refuse the application, other than one for directions, where neither the applicant nor any respondent appears.
27.10(1)(b)	Direction that the proceedings to which the Rules apply will not be held in private, except that a justices’ clerk may give such a direction in relation to a hearing which that justices’ clerk is conducting.
27.11(2)(g)	Power to permit any other person to be present during any hearing, except that a justices’ clerk may give such permission in relation to a hearing which that justices’ clerk is conducting.
29.15	Specifying alternative date for an order, to take effect except an order which the justices’ clerk has made.
29.16	Correcting an accidental slip or omission in an order except where that order was made by a justices’ clerk.