Statutory Instruments
1997 No. 1893 (L. 29)
COUNTY COURTS
FAMILY PROCEEDINGS
SUPREME COURT OF ENGLAND AND WALES
The Family Proceedings (Amendment No. 3) Rules 1997
Made
28th July 1997
Laid before Parliament
31st July 1997
Coming into force
1st October 1997
We, the authority having power under section 40(1) of the Matrimonial and Family Proceedings Act 1984(1) to make rules of court for the purposes of family proceedings in the High Court or county courts, in the exercise of the powers conferred by the said section 40, hereby make the following Rules:
Citation, commencement and interpretation
1.—(1) These Rules may be cited as the Family Proceedings (Amendment No. 3) Rules 1997 and shall come into force on 1st October 1997.
(2) In these Rules, a rule referred to by number means the rule so numbered in the Family Proceedings Rules 1991(2) and a reference to Appendix 1 is a reference to Appendix 1 to those Rules.
2. For rules 3.8, 3.9 and 3.10(3), there shall be substituted the following–
“Applications under Part IV of the Family Law Act 1996 (Family Homes and Domestic Violence)(4)
3.8—(1) An application for an occupation order or a non-molestation order under Part IV of the Family Law Act 1996 shall be made in Form FL401.
(2) An application for an occupation order or a non-molestation order made by a child under the age of sixteen shall be made in Form FLA401 but shall be treated, in the first instance, as an application to the High Court for leave.
(3) An application for an occupation order or a non-molestation order which is made in other proceedings which are pending shall be made in Form FL401.
(4) An application in Form FL401 shall be supported by a statement which is signed by the applicant and is sworn to be true.
(5) Where an application is made without giving notice, the sworn statement shall state the reasons why notice was not given.
(6) An application made on notice (together with the sworn statement and a notice in Form FL402) shall be served by the applicant on the respondent personally not less than 2 days before the date on which the application will be heard.
(7) The court may abridge the period specified in paragraph (6).
(8) Where the applicant is acting in person, service of the application shall be effected by the court if the applicant so requests.
This does not affect the court’s power to order substituted service.
(9) Where an application for an occupation order or a non-molestation order is pending, the court shall consider (on the application of either party or of its own motion) whether to exercise its powers to transfer the hearing of that application to another court and shall make an order for transfer in Form FL417 if it seems necessary or expedient to do so.
(10) Rule 9.2A shall not apply to an application for an occupation order or a non-molestation order under Part IV of the Family Law Act 1996.
(11) A copy of an application for an occupation order under section 33, 35 or 36 of the Family Law Act 1996 shall be served by the applicant by first-class post on the mortgagee or, as the case may be, the landlord of the dwelling-house in question, with a notice in Form FL416 informing him of his right to make representations in writing or at any hearing.
(12) Where the application is for the transfer of a tenancy, notice of the application shall be served by the applicant on the other cohabitant or spouse and on the landlord (as those terms are defined by paragraph 1 of Schedule 7 to the Family Law Act 1996) and any person so served shall be entitled to be heard on the application.
(13) Rules 2.62(4) to (6) and 2.63 (investigation, requests for further information) shall apply, with the necessary modifications, to
(a)an application for an occupation order under section 33, 35 or 36 of the Family Law Act 1996, and
(b)an application for the transfer of a tenancy,
as they apply to an application for ancillary relief.
(14) Rule 3.6(7) to (9) (Married Women’s Property Act 1882(5)) shall apply, with the necessary modifications, to an application for the transfer of a tenancy, as they apply to an application under rule 3.6.
(15) The applicant shall file a statement in Form FL415 after he has served the application.
Hearing of applications under Part IV of the Family Law Act 1996
3.9—(1) An application for an occupation order or a non-molestation order under Part IV of the Family Law Act 1996 shall be dealt with in chambers unless the court otherwise directs.
(2) Where an order is made on an application made ex parte, a copy of the order together with a copy of the application and of the sworn statement in support shall be served by the applicant on the respondent personally.
(3) Where the application is for an occupation order under section 33, 35 or 36 of the Family Law Act 1996, a copy of any order made on the application shall be served by the applicant by first-class post on the mortgagee or, as the case may be, the landlord of the dwelling-house in question.
(4) A copy of an order made on an application heard inter partes shall be served by the applicant on the respondent personally.
(5) Where the applicant is acting in person, service of a copy of any order made on the hearing of the application shall be effected by the court if the applicant so requests.
(6) The following forms shall be used in connection with hearings of applications under Part IV of the Family Law Act 1996–
(a)a record of the hearing shall be made on Form FL405, and
(b)any order made on the hearing shall be issued in Form FL404.
(7) The court may direct that a further hearing be held in order to consider any representations made by a mortgagee or a landlord.
(8) An application to vary, extend or discharge an order made under Part IV of the Family Law Act 1996 shall be made in Form FL403 and this rule shall apply to the hearing of such an application.
Enforcement of orders made on applications under Part IV of the Family Law Act 1996
3.9A—(1) Where a power of arrest is attached to one or more of the provisions (“the relevant provisions”) of an order made under Part IV of the Family Law Act 1996–
(a)the relevant provisions shall be set out in Form FL406 and the form shall not include any provisions of the order to which the power of arrest was not attached; and
(b)a copy of the form shall be delivered to the officer for the time being in charge of any police station for the applicant’s address or of such other police station as the court may specify.
The copy of the form delivered under sub-paragraph (b) shall be accompanied by a statement showing that the respondent has been served with the order or informed of its terms (whether by being present when the order was made or by telephone or otherwise).
(2) Where an order is made varying or discharging the relevant provisions, the proper officer shall–
(a)immediately inform the officer who received a copy of the form under paragraph (1) and, if the applicant’s address has changed, the officer for the time being in charge of the police station for the new address; and
(b)deliver a copy of the order to any officer so informed.
(3) An application for the issue of a warrant for the arrest of the respondent shall be made in Form FL407 and the warrant shall be issued in Form FL408.
(4) The court before whom a person is brought following his arrest may–
(a)determine whether the facts, and the circumstances which led to the arrest, amounted to disobedience of the order, or
(b)adjourn the proceedings and, where such an order is made, the arrested person may be released and–
(i)be dealt with within 14 days of the day on which he was arrested; and
(ii)be given not less than 2 days' notice of the adjourned hearing.
Nothing in this paragraph shall prevent the issue of a a notice under CCR Order 29, rule 1(4) if the arrested person is not dealt with within the period mentioned in sub-paragraph (b)(i) above.
(5) The following provisions shall apply, with the necessary modifications, to the enforcement of orders made on applications under Part IV of the Family Law Act 1996–
(a)RSC Order 52, rule 7 (power to suspend execution of committal order);
(b)(in a case where an application for an order of committal is made to the High Court) RSC Order 52, rule 2 (application for leave);
(c)CCR Order 29, rule 1 (committal for breach of order);
(d)CCR Order 29, rule 1A (undertakings);
(e)CCR Order 29, rule 3 (discharge of person in custody);
and CCR Order 29, rule 1 shall have effect, as if for paragraph (3), there were substituted the following–
“(3) At the time when the order is drawn up, the proper officer shall–
(a)where the order made is (or includes) a non-molestation order and
(b)where the order made is an occupation order and the court so directs,
issue a copy of the order, indorsed with or incorporating a notice as to the consequences of disobedience, for service in accordance with paragraph (2).”.
(6) The court may adjourn consideration of the penalty to be imposed for contempts found provided and such consideration may be restored if the respondent does not comply with any conditions specified by the court.
(7) Where the court makes a hospital order in Form FL413 or a guardianship order in Form FL414 under the Mental Health Act 1983(6), the proper officer shall–
(a)send to the hospital any information which will be of assistance in dealing with the patient;
(b)inform the applicant when the respondent is being transferred to hospital.
(8) Where a transfer direction given by the Secretary of State under section 48 of the Mental Health Act 1983 is in force in respect of a person remanded in custody by the court under Schedule 5 to the Family Law Act 1996, the proper officer shall notify–
(a)the governor of the prison to which that person was remanded; and
(b)the hospital where he is detained,
of any committal hearing which that person is required to attend and the proper officer shall give notice in writing to the hospital where that person is detained of any further remand under paragraph 3 of Schedule 5 to the Family Law Act 1996.
(9) An order for the remand of the respondent shall be in Form FL409.
(10) In paragraph (4) “arrest” means arrest under a power of arrest attached to an order or under a warrant of arrest.
Applications under Part IV of the Family Law Act 1996: bail
3.10—(1) An application for bail made by a person arrested under a power of arrest or a warrant of arrest may be made either orally or in writing.
(2) Where an application is made in writing, it shall contain the following particulars–
(a)the full name of the person making the application;
(b)the address of the place where the person making the application is detained at the time when the application is made;
(c)the address where the person making the application would reside if he were to be granted bail;
(d)the amount of the recognizance in which he would agree to be bound; and
(e)the grounds on which the application is made and, where a previous application has been refused, full particulars of any change in circumstances which has occurred since that refusal.
(3) An application made in writing shall be signed by the person making the application or by a person duly authorised by him in that behalf or, where the person making the application is a minor or is for any reason incapable of acting, by a guardian ad litem acting on his behalf and a copy shall be served by the person making the application on the applicant for the Part IV order.
(4) The persons prescribed for the purposes of paragraph 4 of Schedule 5 to the Family Law Act 1996 (postponement of taking of recognizance) are–
(a)a district judge,
(b)a justice of the peace,
(c)a justices' clerk,
(d)a police officer of the rank of inspector or above or in charge of a police station, and
(e)(where the person making the application is in his custody) the governor or keeper of a prison.
(5) The person having custody of the person making the application shall–
(a)on receipt of a certificate signed by or on behalf of the district judge stating that the recognizance of any sureties required have been taken, or on being otherwise satisfied that all such recognizances have been taken; and
(b)on being satisfied that the person making the application has entered into his recognizance,
release the person making the application.
(6) The following forms shall be used–
(a)the recognizance of the person making the application shall be in Form FL410 and that of a surety in Form FL411;
(b)a bail notice in Form FL412 shall be given to the respondent where he is remanded on bail.”.
3.—(1) Rule 4.24(7) shall stand as paragraph (1) of that rule and shall be amended by inserting, as sub-paragraph (b), the following–
“(b)section 38A(2)(b)(ii) or 44A(2)(b)(ii), or”
(2) After rule 4.24(1), there shall be inserted the following–
“(2) Any written consent given for the purposes of subsection (2) of section 38A or section 44A, shall include a statement that the person giving consent–
(a)is able and willing to give to the child the care which it would be reasonable to expect a parent to give him; and
(b)understands that the giving of consent could lead to the exclusion of the relevant person from the dwelling-house in which the child lives.”.
4. After rule 4.24, there shall be inserted the following new rule–
“Exclusion requirements: interim care orders and emergency protection orders
4.24A—(1) This rule applies where the court includes an exclusion requirement in an interim care order or an emergency protection order.
(2) The applicant for an interim care order or emergency protection order shall–
(a)prepare a separate statement of the evidence in support of the application for an exclusion requirement;
(b)serve the statement personally on the relevant person with a copy of the order containing the exclusion requirement (and of any power of arrest which is attached to it);
(c)inform the relevant person of his right to apply to vary or discharge the exclusion requirement.
(3) Where a power of arrest is attached to an exclusion requirement in an interim care order or an emergency protection order, a copy of the order shall be delivered to the officer for the time being in charge of the police station for the area in which the dwelling-house in which the child lives is situated (or of such other station as the court may specify) together with a statement showing that the relevant person has been served with the order or informed of its terms (whether by being present when the order was made or by telephone or otherwise).
(4) Rules 3.9(5), 3.9A (except paragraphs (1) and (3)) and 3.10 shall apply, with the necessary modifications, for the service, variation, discharge and enforcement of any exclusion requirement to which a power of arrest is attached as they apply to an order made on an application under Part IV of the Family Law Act 1996.
(5) The relevant person shall serve the parties to the proceedings with any application which he makes for the variation or discharge of the exclusion requirement.
(6) Where an exclusion requirement ceases to have effect whether–
(a)as a result of the removal of a child under section 38A(10) or 44A(10),
(b)because of the discharge of the interim care order or emergency protection order, or
(c)otherwise,
the applicant shall inform–
(i)the relevant person,
(ii)the parties to the proceedings,
(iii)any officer to whom a copy of the order was delivered under paragraph (3), and
(iv)(where necessary) the court.
(7) Where the court includes an exclusion requirement in an interim care order or an emergency protection order of its own motion, paragraph (2) shall apply with the omission of any reference to the statement of the evidence.”.
5. After Rule 7.2(3) there shall be inserted the following new paragraph–
“(3A) Where an order or warrant for the arrest or committal of any person has been made or issued in proceedings under Part IV of the Family Law Act 1996 pending in the principal registry which are treated as pending in a county court, the order or warrant may, if the court so directs, be executed by the tipstaff within any county court district.”.
6. Rule 8.1(2)(b) shall be amended by substituting for “,3.6 or 3.8”, “or 3.6”.
7. After rule 8.1, there shall be inserted the following new rule–
“Appeals from orders made under Part IV of the Family Law Act 1996
8.1A—(1) This rule applies to all appeals from orders made under Part IV of the Family Law Act 1996 and on such an appeal–
(a)paragraphs (2), (3), (4), (5), (7) and (8) of rule 4.22,
(b)paragraphs (5) and (6) of rule 8.1, and
(c)paragraphs (4)(e) and (6) of rule 8.2,
shall apply subject to the following provisions of this rule and with the necessary modifications.
(2) The justices' clerk of the magistrates' court from which an appeal is brought shall be served with the documents mentioned in rule 4.22(2).
(3) Where an appeal lies to the High Court, the documents required to be filed by rule 4.22(2) shall be filed in the registry of the High Court which is nearest to the magistrates' court from which the appeal is brought.
(4) Where the appeal is brought against the making of a hospital order or a guardianship order under the Mental Health Act 1983, a copy of any written evidence considered by the magistrates' court under section 37(1)(a) of the 1983 Act shall be sent by the justices' clerk to the registry of the High Court in which the documents relating to the appeal are filed in accordance with paragraph (3).
(5) A district judge may dismiss an appeal to which this rule applies for want of prosecution and may deal with any question of costs arising out of the dismissal or withdrawal of an appeal.
(6) Any order or decision granting or varying an order (or refusing to do so) in proceedings in which an application is made in accordance with rule 3.8 for–
(a)an occupation order as described in section 33(4) of the Family Law Act 1996,
(b)an occupation order containing any of the provisions specified in section 33(3) where the applicant or the respondent has matrimonial home rights, or
(c)a transfer of tenancy,
shall be treated as a final order for the purposes of CCR Order 37, rule 6 and, on an appeal from such an order, the judge may exercise his own discretion in substitution for that of the district judge and the provisions of CCR Order 37, rule 6 shall apply.”.
8. In Appendix 1–
(a)for forms C11, C23 and C33 there shall be substituted the forms in Schedule 1 to these Rules;
(b)at the end of the list of forms, there shall be inserted the list of forms set out in Schedule 2 to these Rules;
(c)the forms set out in Schedule 3 to these Rules shall be inserted at the end of Appendix 1.
9. Subject to paragraph 10(3) of Schedule 9 to the Family Law Act 1996, rules 2 to 8 shall not apply to proceedings commenced before Part IV of that Act came into force.
Miscellaneous amendments
10. After rule 2.9(6) there shall be inserted the following new paragraph–
“(6A) Paragraph (6) shall not apply in cases where–
(a)the petition alleges two years' separation coupled with the respondent’s consent to a decree being granted; and
(b)none of the other facts mentioned in section 1(2) of the Act of 1973 is alleged,
unless the petititioner produces to the court a written statement containing the respondent’s consent to the grant of a decree.”.
11. Rule 2.29 shall be amended by substituting, for the words “CCR Order 20, rule 18” in both places where they occur, the words “CCR Order 20, rule 13”.
12. Rule 2.36(4) shall be amended by inserting, after the words “evidence filed under rule 2.24(3)”, the words “(except the statement of arrangements)”.
13. After rule 2.40(2) there shall be inserted the following new paragraph–
“(3) A cause shall be treated as pending for the purposes of this rule for a period of one year after the last hearing or judicial intervention in the cause and rule 1.2(2) shall not apply.”
14. Rule 3.13(5) shall be amended by substituting, for the words “in Form M26”, the words“in Form M30”.
15. Rule 4.27(1)(8) shall be amended by substituting, for the words “in Form C37”, the words “in writing”.
16. Rule 6.2(1) shall be amended by inserting, at the end, the words “and issued out of the principal registry”.
17.—(1) Rule 7.2(3) shall be amended by inserting, after the words “divorce county court”, the words “or a county court” and by substituting, for the words “a judge”, the words “the court”.
(2) Rule 7.2(4) shall be amended by inserting, after the words “Royal Courts of Justice”, the words “or the principal registry”.
18. Rule 7.20(3) shall be amended by substituting, for the words “under section 2(2)”, the words “under section 21(2)”.
19. After rule 9.2A(6)(9) there shall be inserted the following new paragraph–
“(6A) In exercising its powers under paragraph (6) the court may order the next friend or guardian ad litem to take such part in the proceedings as the court may direct.”.
20. Form M18 shall be omitted from Appendix 1.
Irvine of Lairg, C.
Dated 28th July 1997
SCHEDULE 1
Rule 8
SCHEDULE 2FAMILY PROCEEDINGS (AMENDMENT NO 3) RULES 1997
FL401
Application for a non-molestation order/an occupation order
FL402
Notice of Proceedings [Hearing] [Directions Appointment]
FL403
Application to vary, extend or discharge an order in existing proceedings
FL404
Order or Direction
FL405
Record of Hearing
FL406
Power of Arrest
FL407
Application for a Warrant of Arrest
FL408
Warrant of Arrest
FL409
Remand Order
FL410
Recognizance of respondent
FL411
Recognizance of respondent’s surety
FL412
Bail Notice
FL413
Hospital Order/Interim Hospital Order
FL414
Guardianship Order
FL415
Statement of Service
FL416
Notice to Mortgagees and Landlords
FL417
Transfer of proceedings to [the High Court] [a county court] [a family proceedings court]
Rule 8
SCHEDULE 3
Explanatory Note
(This note is not part of the Rules)
These Rules amend the Family Proceedings Rules 1991 so as to–
(a)provide for the making of applications under Part IV of the Family Law Act 1996 and for bringing appeals against orders made on such applications (rules 2 and 5 to 7, 8(b), 8(c) and 9);
(b)make provision where the court includes an exclusion requirement in an interim care order or an emergency protection order (rules 3 and 4, 8(a));
(c)require a petitioner to produce the written consent of the respondent to the grant of a divorce decree before the court will direct that, in the absence of an acknowledgement of service, the respondent has been duly served (rule 10);
(d)make some minor corrections (rules 11, 14, 15 and 19);
(e)prevent the statement of arrangements for the children being available for inspection (rule 12);
(f)define the period for which a cause is to be treated as pending for the purposes of rule 2.40(1) (which requires applications relating to children to be made in the cause where a cause is pending) (rule 13);
(g)require applications under the Hague Convention and the European Convention (within the meaning of the Child Abduction and Custody Act 1985 (c. 60)) to be issued out of the principal registry of the Family Division in London (rule 16);
(h)make some minor amendments to rule 7.2 (committal and injunction) in its application to proceedings in the principal registry of the Family Division (rule 17); and
(i)enable the court to direct a next friend or guardian ad litem to take part in proceedings where the court is considering whether to allow a minor to proceed without such a person (rule 18).
(1)
1984 c. 42; section 40 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18, paragraph 50 and the Civil Procedure Act 1997 (c. 12), Schedule 2 paragraph 3.
(2)
S.I. 1991/1247; the relevant amending instruments are noted in footnotes to provisions in the instrument.
(3)
Rule 3.9 was amended by S.I. 1991/2113.
(4)
1996 c. 27.
(5)
1882 c. 75.
(6)
1983 c. 20.
(7)
Rule 4.24 was amended by S.I. 1992/456.
(8)
Rule 4.27 was amended by S.I. 1994/3155.
(9)
Rule 9.2A was inserted by S.I. 1992/456.
