Loose Ends

The Family Procedure (Modification of Enactments) Order 2011 (SI 2011/1045) tie up a few of the loose ends and anomalies I had been wondering about, following the implementation of the Family Procedure Rules 2010. In particular, they bring part 28 on costs into effect in the FPC, and clarify the Allocation Order which provided for transfer to County Court on grounds of incapacity of an adult when the FPC had no power to appoint the OS or a litigation friend. 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.

So where I had previously wondered how whether the Allocation order would continue to result in transfer because of adult incapacity notwithstanding Part 15, it seems that this is unlikely to be so.

However the preceding sub para in the Allocation Order (15(1)(g)): “may transfer where…there is a real possibility that a guardian ad litem will be appointed under rule 9.5 of the Family Proceedings Rules 1991;” remains, which seems to leave a slightly different anomaly.

Hat tip to Jordans Family Law for alerting me to this – the SI was only laid before Parliament on 30 March, so although I initially thought I must have missed it, in fact it seems to have been a bit of a Parliamentary afterthought!

PS My previous posts on the FPR can be found here.

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  1. […] See this post for a little bit more information in light of the subsequent implementation of a related SI. Share and […]

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