Ask and ye shall receive. And lo! I have receivethed no less than 27 Practice Directions to supplement the Family Procedure Rules 2010, all smiling at me from my inbox this morning, and all apparently all made by the President and approved on behalf of the Lord (Chancellor) Himself. My cup truly runneth over. There remains at least one outstanding, but you can’t have everything you wish for. Blessed as I am with these bountiful gifts it is only fitting that I should give of myself and so, once again yours truly has waded through reams of information to produce some kind of distillation. Thanks be to Pink Tape. And here endeth the cheap religious mockery.
I’m going to take them in order of interest. This is a wildly reckless editorial decision I know, but necessary if I am to preserve my sanity. And it’s Friday and this is what I consider fun (it will be Monday by the time you read this. No one will thank me if I deliver them this gift on a weekend).
Let us begin at the back with the PD that deals with Transitional Arrangements (PD36A). Because the first thing you want to know is just how soon is all this really going to kick in?
PD 36A TRANSITIONAL ARRANGEMENTS
The general intention is to apply the FPR to existing proceedings as far as practicable, and the old rules only where it is not.
When an initiating step has been taken before 6 April 2011 it will proceed under the previous rules and any step that must be taken in response must be in accordance with those rules. However, where a new step is taken in any existing proceedings on or after 6 April it must be done under the new rules.
The overriding objective applies in any event to all cases from 6 April onwards.
Only application forms under the FPR will be issued on or after 6 April – old forms will be returned unissued, except in exceptional cases where the matter is urgent. This begs the question of what the new forms are – of which more below.
When a matter first comes before the court (including on paper) after 6 April the court may direct how the FPR apply, although there is a general presumption that the FPR will apply.
If an application is issued prior to 6 April but listed after that date the presumption is that the application will be decided having regard to the FPR.
And where the first occasion on which existing proceedings are before a court after 6 April is a hearing of a substantive issue the general presumption is that the hearing will be conducted according to the FPR.
An assessment of costs taking place after 6 April will be in accordance with FPR Part 28, but the presumption is that no costs for work undertaken prior to 6 April will be disallowed if they would have been allowed if assessed prior to that date. The question of whether to allow costs for work undertaken on or after 6 April will generally be taken in accordance with the FPR.
Easy. The answer to the first question is: pretty much it will kick in on 6 April, so you’d better be ready.
PD 12G COMMUNICATION OF INFORMATION
As anticipated, this PD restates the tables at old rules 11.5, 11.6 and 11.7 which set out when and where information may be communicated to third parties, along with the contents of old rules 11.8 and 11.9. So in essence it is now safe to say that there is no substantive change to the rules on communication of information (of course we still await the implementation of the CSFA, now on hold).
PD 9A APPLICATION FOR A FINANCIAL REMEDY
The PD does not generally apply to proceedings in the Magistrates court, but then few financial proceedings are dealt with in the Mags.
The Pre-Action Protocol is now incorporated into the PD which the parties are expected to comply with. It cautions against automatic pre-action disclosure, in order to avoid excessive and uncontrolled costs and delay. Pre-action disclosure is only to be encouraged where both parties agree and where disclosure is unlikely to be an issue.
Solicitors should consider from the outset and on an ongoing basis whether or not mediation or collaborative law should be suggested to clients as an alternative to solicitor negotiation or court based litigation.
The PD sets out a number of uncontroversial principles to be adhered to, in accordance with and supplemental to the overriding objective: The needs of children should be addressed and safeguarded, matters should be handled so as to cause minimum distress and to promote as good a continuing relationship between the parties and children as is possible. Full and frank disclosure, proportionality…Avoid trial by correspondence. Discourage correspondence raising irrelevant issues or which may promote entrenched polarised or hostile positions. You get the picture. All the things we know are good practice.
Back to the PD. Costs estimates are to be provided at each hearing. A breach of the PD or PAP will be taken into account when deciding whether to depart from the general rule on costs.
The PD encourages preparation of an agreed case summary, detailed schedule of assets and draft directions prior to first appointment. Details of any proposed experts are to be provided before or at FDA.
Detailed provisions in PD 22A (Written Evidence) as to the collation, pagination and storage of documents, exhibits and non documentary evidence are applicable to Forms E. The court may direct that Forms E are not kept on the file and replies to questionnaire are not to be routinely filed with the court. Replies to questionnaire must be verified by a statement of truth.
Consent orders may be endorsed by solicitors for the Respondent or the Respondent himself unless they contain undertakings, in which case there must be a signature from the person giving the undertaking.
PD 10A PART 4 FAMILY LAW ACT 1996
Applications for a Part IV order by a minor must be made to the County court under Part 18.
If an ex parte non-mol or occupation order with power of arrest is made at a private hearing the terms of the order and name of the Respondent must be announced in open court at the earliest opportunity – on that day or the following listed sitting day.
Where a person is brought to court after arrest under a power of arrest the press and public must be permitted unless impracticable for security reasons.
There is provision for the information to be provided on an application for bail, which includes details of where the person applying would reside if bail is granted, any recognizance which can be offered, grounds and any change of circumstances since a prior refusal of bail.
PD 12C – SERVICE OF APPLICATION RE CHILDREN
Makes comprehensive provision for who is to be served with notice of proceedings, and provides for the time required for service, which ranges from 14 days for private law proceedings, through to 7 days for discharge applications and private law applications in respect of children under a care order (for example), down to 3 days for a care order, and 1 day for emergency proceedings and secure accommodation applications.
PD 16A – REPRESENTATION OF CHILDREN
Except where a child is instructing a solicitor directly, a children’s Guardian appointed under rule 16.3 (public law) must contact or seek to interview such persons as the children’s Guardian thinks appropriate or as the court directs; and to obtain such professional assistance as is available which the Guardian thinks appropriate or which the court directs be obtained.
Either Guardian or solicitor must attend all directions hearings unless excused, and must advise the court as to competence, wishes and appropriate forum and timing for the proceedings, and of the range of options available. That advice may be given orally or in writing, but if given orally must be noted by the court.
Where the Guardian inspects local authority or adoption agency documents pursuant to s42 of the CA 1989 or s103 of the ACA 2002 they must bring to the attention of the court and the other parties (unless otherwise directed) any documents and records which may assist in the proper determination of the proceedings. It is useful to have this duty to disclose drawn to the attention of Guardians, and more particularly to Local Authorities. It is weakened only by the pressure of work on Guardians – it is only the most dedicated who are prepared to make time where none exists to inspect the original files.
Applications for the appointment of a private law Guardian must be made under Part 18 (standard route) and supported by evidence. It is unclear whether all applications for a Guardian must be dealt with in this way or only those where the application is for a named individual rather than an officer of CAFCASS to be appointed.
Private law Guardians are only to be appointed in cases which involve an issue of significant difficulty. Other options are to be considered first. The criteria set out at pa 7.2 of the PD are in similar terms to the previous PD on the appointment of guardians under old rule 9.5.
PD 4A STRIKING OUT A STATEMENT OF CASE
This power is much like the power to strike out in the CPR. The examples of cases which may be struck out given in the PD are instructive however: Applications which set out no facts indicating what the application is about, which are incoherent and make no sense or which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognizable application against the respondent. Also specifically mentioned are the frivolous, scurrilous or obviously ill-founded.
The PD specifically provides that a strike out order may be made of the courts’ own motion or on application (under Part 18) and with or without a hearing. Any such application should be lodged as soon as possible.
Looking at the examples given in the PD, it seems highly likely that this power will most often impact upon the aggrieved litigant in person without the benefit of legal advice. It is hard to envisage that applications prepared by legal representatives will very often be so poorly expressed as to fall foul of these rules.
PD 4B CIVIL RESTRAINT ORDERS
It is clear from the PD that the court should not consider CROs unless there have been multiple applications which are totally without merit.
Limited CRO where 2 or more applications totally without merit.
Extended CRO where persistently made applications totally without merit.
General CRO (High Court only) where the party persists in making applications totally without merit in circumstances where the Limited or Extended CRO are insufficient.
PD5A APPLICATION FORMS
As will be seen from other sections of this post this PD is not yet available. By observing the shape of the hole its absence creates it appears likely that there will be a single application form for the commencement of proceedings, or at least a raft of different “application forms” as opposed to the previous mishmash of applications, notices and originating summonses.
PD 7A PROCEDURE FOR APPLICATIONS IN MATRIMONIAL AND CIVIL PARTNERSHIP PROCEEDINGS
Unfortunately this PD states that an application for a matrimonial or CP order must be made on the form specified in PD5A – which is not yet available. It is implicit in the PD that the old style petition may well have been revised. There was previously a list of specified contents contained at the rear of the old 1991 Family Proceedings Rules.
There is now provision for the expedition of the making of decree absolute (or final order) by way of application under Part 18 for an order shortening the time before which decree nisi (or conditional order) may be made absolute (final).
PD 18A OTHER APPLICATIONS IN PROCEEDINGS
It looks as if there is a standard applications notice to be used, which is to be completed with a range of specified information depending on the type of application, as listed in the PD. Upon receipt of an application the court will consider whether or not the matter is suitable for consideration without a hearing and whether or not it has sufficient information, bearing in mind any request made by the applicant for disposal on paper or at a hearing.
The following sections are worth setting out in full:
Pa 4.8: The parties must anticipate that at any hearing (including any directions hearing) the court may wish to review the conduct of the case as a whole and give any necessary directions. They should be ready to assist the court in doing so and to answer questions the court may ask for this purpose.
Pa 4.9: Where a date for a hearing has been fixed, a party who wishes to make an application at that hearing but does not have sufficient time to file an application notice should as soon as possible inform the court (if possible in writing) and, if possible, the other parties of the nature of the application and the reason for it. That party should then make the application orally at the hearing.
Pa 5.1 provides that an application may be made without service of an application notice only
a) where there is exceptional urgency
b) where the overriding objective is best furthered by doing so
c) by the consent of all parties
d) with the permission of the court or
e) where 4.9 applies
f) or where a court order, rule or PD permits
Generally an application notice must be served as soon as possible and at least 7 days before the hearing date. Informal notice should be given if the full 7 days is not possible.
There is specific provision for hearing by telephone, usually only where all consent. If a hearing is to be conducted by telephone no advocate is to attend in person unless agreed with the other side. Presumably this is to avoid any impression of unfairness. The applicant’s legal adviser is responsible for arranging the conference call. Advocates are to be assembled on the telephone conference before the judge or bench is joined.
PD 19A ALTERNATIVE APPLICATIONS IN PROCEEDINGS
Part 19 may be used where part 18 does not apply and there is no prescribed form for the application, or the application concerns a question which is unlikely to involve a substantial dispute of fact. Appropriate applications are where an order or direction is sought and is unopposed by all parties before the commencement of proceedings.
Again, the application form to be used is specified in PD5A which is not yet available. Any evidence which is relied upon should be filed with the application and evidence in response should be filed with the acknowledgement of service, although an application for extension of time may be made. The parties may agree to extend time between themselves but must file an agreement at the same time as the acknowledgment of service and can permit no more than 17 further days for the filing of evidence. The parties may agree that the Applicant’s evidence in reply can be filed not more than 28 days after service of the Respondent’s own evidence.
Forced marriage applications and applications for permission to appeal always fall under this part.
I confess though, that I have yet to get my head around precisely when Part 19 will apply. No doubt it will come in time. It’s difficult to bring a document of the density of these rules and PDs off the page. I imagine that applications for appointment of an expert or valuer where none can be agreed could, for example, be dealt with under this rule.
PD 20A INTERIM REMEDIES
This section primarily deals with urgent injunctive type relief, including search and freezing orders. There are detailed provisions for search orders, no doubt in response to the Imerman decision.
PD 21A DISCLOSURE AND INSPECTION
This now provides for standard disclosure by list in non financial proceedings – but only where directed. In financial remedy proceedings the disclosure is described as “staged” – form E, questionnaire and a further questionnaire with permission. Within matrimonial and civil partnership proceedings the court may also order disclosure to clarify any matter in dispute.
In any family case the court may order specific disclosure by reference to specific documents or classes of documents, by way of a search and disclosure of the results of that search.
PD 22A WRITTEN EVIDENCE
Application forms and notices and answer (not matrimonial and civil partnership order documents) may be used as evidence as long as verified by a statement of truth.
Affidavits are still required in respect of contempt proceedings, and where otherwise specified.
There are now detailed provisions for the standard format of witness statements and affidavits, right down to the margin width!
Fortunately where a witness statement, affidavit or exhibit does not comply with the rules or PD the court may give permission to file and use it. It seems unlikely that minor non compliance will lead to the refusal to admit it as evidence, particularly where litigants in person are concerned.
There is a long annex containing detailed practical guidance on video conferencing which is probably best read next time you are thinking about using video conferencing.
PD 24A WITNESSES, DEPOSITIONS & EVIDENCE IN EU
Conduct money for a witness who has been summonsed is now more naturally described as travelling expenses and compensation for loss of time (the latter based on Crown Court rates).
There are lengthy provisions for the taking of depositions here and abroad.
PD 33A ENFORCEMENT OF UNDERTAKINGS
Of note: a user friendly health warning is to be endorsed on undertakings, to read: “you may be sent to prison for contempt of court if you break the promises that you have given to the court” and although the promisor must sign to confirm his understanding of these consequences of breach the statement need not be given before the court in person. It may be endorsed on the court copy or filed in a separate document such as a letter. Modified endorsement wording is also provided in respect of promises to pay money.
OTHER PDS are not dealt with here, either because they are pretty self explanatory from the title, will rarely crop up or, frankly, because they are so dull looking I have ignored them. This is the bloggers prerogative. But I don’t think I have missed out anything key. However, those left pathetically on the sidelines are:
PD 6A AND 6B SERVICE IN AND OUT OF THE JURISDICTION
PD 7B MEDICAL EXAMS ON ANNULMENT APPLICATIONS
PD 7C POLYGAMOUS MARRIAGES
PD 12D WARDSHIP & INHERENT JURISDICTION
PD 12H CONTRIBUTION ORDERS
PD 15A PROTECTED PARTIES
PD 17A STATEMENTS OF TRUTH
PD 26A CHANGE OF SOLICITOR
PD 29A HUMAN RIGHTS – JOINING THE CROWN
PD 35A MEDIATION DIRECTIVE
[UPDATE 16 Feb 2011 Post on PD 3A (Mediation) now available here]
PS See this post for a little bit more information in light of the subsequent implementation of a related SI.