PRACTICE DIRECTIONS TO THE FAMILY PROCEDURE RULES 2010 – THE ABRIDGED VERSION

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.

Family Procedure Rules 2010 – The Very Abridged Version

The Family Procedure Rules 2010 – not to be confused with the Family ProceedINGS Rules 1991 (as amended) – are now available for your delectation. I don’t know many lawyers who would relish the prospect of poring over almost 300 pages of SI, so I’ve done it for you. Not entirely selfless, as it’s a task I had to perform for other reasons (I take the view that it wouldn’t do to write a book about Family Courts without understanding the rules), but regardless of that you may send your thanks, congratulations, contributions or insults my way any time.

The new FPR are hailed as a single consolidated set of rules, in contrast to the mishmash of FPR, FP(CA)R and SCR, CCR, CPR that preceded. However the new rules do appear from first reading to rely rather more heavily on Practice Directions for the essentials than has hitherto been the case. Since those PDs have not yet been made available there are some parts of the picture that unfolds below which remain a little blurry. This then is a first sketch, the detail will have to be in-filled later when the PDs are available and when I’ve recovered from the tedium that is part and parcel of a comparison between old and new rules.

I have not summarized every element of the new rules. Many large chunks of the rules are in fact the same rules in more logical order or expressed in less lawyerly style (although I still don’t think the rules will win any Plain English Crystals (mind you I note with only one raised eyebrow that listed as holders of a Crystal are the ‘Legal Services Board’ (sic) and the Child Support Agency – perhaps crystals are not so hard to come by). I have focused (as you may imagine) on those aspects of the rules which represent a departure from the old, but what has struck me about this exercise is how much material I thought at first scan was new, but in fact was already in the rules. (I make this confession with some confidence that it is not just me to whom this will apply – I know none of you know these rules inside out either – that’s what we pay £300 for the Family Court Practice for!) I had assumed for example that, based on the length of the section concerning the representation of children, there was much new material on this topic. In fact the vast bulk of it is already in the rules, rules we have all probably read at some point but which we scarcely ever refer back to. There are many dusty corners of the FPR which many practitioners will not have had cause to peer into regularly – this is an opportunity to (re)familiarize yourself with those aspects of the rules observed mainly in their breach or which are well known as to content but not as to source (who can tell me the rule number which bars the filling of evidence in section 8 applications except by specific direction of the court?). There are more than one of the rules which had me muttering “good idea – why wasn’t that in the rules before? Oh – it was. Guess we just ignored it”.

So, here is my first run at the mini-FPR 2010. Whatever else it may be it’s a damn sight shorter than the full version. Please let me know if there are any errors or idiocies by posting a comment below.

OVERRIDING OBJECTIVE

The overriding objective is set out in Part 1 and is couched in broadly similar terms to that which has to date been contained in rule 2.51D FPR, but that duty to further the overriding objective is now extended from covering only ancillary relief to encompass all types of family proceedings. In the section describing the court’s case management powers (1.4) the wording is broadened to reflect the increasing pressure upon court time and resources and shifts in emphasis in recent years: encouragement to parties to engage in ADR (previously mediation), and matters of strategic case planning such as attention to who should be a party at an early stage, the order in which issues should be resolved, dealing with multiple issues at one hearing if possible, dealing with matters without the attendance of the parties where possible and a general cost benefit analysis on an issue by issue basis.

DEFINITIONS

Decrees of divorce or dissolution orders (civil partnership) become matrimonial orders or civil partnership orders. Ancillary relief becomes an application for a financial order.

ADR

Part 3 gives a general power to encourage ADR and to adjourn for that purpose.

GENERAL CASE MANAGEMENT

Part 4 gives a far more comprehensive list of case management powers than previously specified (4.1), notable introductions being the ability to require a party’s legal representative to attend court, to hold a hearing or receive evidence by ‘phone or other method of direct oral communication, and to dismiss or give a decision on an application after a decision on a preliminary issue.

The court may make orders of its own motion, with or without taking written or oral representations from the parties, although if the parties have not been heard the order must contain a statement that the parties may apply to vary or set aside within 7 days of service.

The court may strike out a case or dismiss an application of its on motion for lack of reasonable grounds, abuse of process, failure to comply with rules – all directly transposed from CPR 3.4. Additionally, the court may do so by consent in respect of decrees and dissolution orders.

As provided for in CPR 23.12 the court must record on the order if the application was totally without merit and consider the making of a civil restraint order. This power derives from 4.4 and does not apply to Children proceedings, where s91(14) Children Act 1989 is applicable. There may be costs consequences of a strike out under this rule.

As with the CPR, the court may make unless orders and there is provision for a party to apply for relief from sanctions. Provisions for relief from sanctions (4.5-4.6) mirror those in the CPR.

STARTING PROCEEDINGS

Part 5 says no more than that the right forms must be used and properly completed.

Part 6 deals with service. Of note are new and detailed provisions for service on and by children and or their guardians or legal representatives, including provision for all documents to routinely go to the Guardian or CAFCASS, or the LA if preparing a report under s7 or for the purposes of a special guardianship or FAO. Hitherto although contained in a different format in old rule 4.17 this had often been overlooked by busy solicitors. Also retained but now at rule 12.19 is the general restriction on filing evidence other than that specifically permitted by direction of the court.

DIVORCE & DISSOLUTION OF CIVIL PARTNERSHIPS

Part 7 deals with applications for decrees and dissolution orders, now called matrimonial and civil partnership proceedings. Petitions now become applications.

Rule 7.9 is a modern phrasing of old rule 2.8 and permits withdrawal of an application before service.

Rule 7.10 rephrases old rule 2.7 regarding the parties to proceedings, slightly expanding circumstances in which a person with whom it is alleged a party has committed adultery with is not to be a party (child, death, allegation of adultery by rape).

Rule 7.11 sets out old rules 2.6A and 2.6B regarding nullity petitions in cases of gender recognition certificates.

Rule 7.16 makes express the existing arrangement that matrimonial and civil partnership hearings are to be heard in public unless certain criteria apply (7.16(3), namely that publicity would defeat the object, national security, confidentiality, to protect interests of child or protected party, at a without notice hearing, otherwise in the interests of justice). Pursuant to rule 7.16(5) the court may order that the identity of a party or witness is not to be disclosed if necessary to protect the interests of that person.

Other provisions in relation to obtaining of matrimonial and civil partnership orders remain broadly the same, albeit not in the same order.

MISCELLANEOUS APPLICATIONS

Part 8 deals with procedure for miscellaneous applications, which must be brought under the new Part 19 “alternative” procedure (equivalent to Pt 8 CPR where no significant dispute of fact anticipated). Those most likely to arise are applications for permission to apply for financial remedy after overseas proceedings and transfer of tenancy applications under sch 7 Family Law Act 1996. Others are unlikely to arise very often at all.

ANCILLARY RELIEF

Part 9 deals with applications for a financial remedy, or in auld English – ancillary relief (in which I include civil partnerships). Interim applications are made under the part 18 procedure (broadly conceptually equivalent to CPR pt 7).

There was previously a lacunae in the rules in respect of applications under Schedule 1 Children Act 1989 for financial orders in respect of children. Those applications are now incorporated alongside other types of financial orders and follow the same procedure. Rule 9.11 now specifically empowers the court to direct that a child be separately represented on any application for financial remedy relating to the child. Previously r9.5 applied to all family proceedings, but has not generally been used to direct separate representation of children in this category of proceedings.

First appointments will be fixed between 12 and 16 weeks after filing of the application (9.12 – broadly equivalent to old 2.61A).

9.14 replicates old rule ‘Procedure before the first appointment’ at old 2.61B. 9.15 and 9.16 together replicate old rule 2.61D regarding the first appointment. Similarly 9.17 sets out the old rule 2.61E regarding the FDR.

Provisions to provide costs estimates and make open proposals remain (9.27 and 9.28 respectively).

There are now lengthy provisions concerning the formalities of pension orders and their implementation, set out between 9.38 and 9.45.

DOMESTIC VIOLENCE & FORCED MARRIAGE

Part 10 concerns domestic violence injunctions and forced marriage orders under Part IV Family Law Act 1996.

That these categories of proceedings will be heard in private (unless otherwise directed) is clarified by rule 10.5 and 11.7.

The provisions for the withholding of information in forced marriage applications is broader as drafted in the new rules than was previously the case – formerly rule 3.32 permitted the withholding of documents only, whereas new rule 11.7 provides for the withholding of any submissions made or evidence adduced.

CHILDREN

Part 12 deals with the bulk of children matters, essentially all those excluding adoption and placement matters and matters concerned with the Human Fertilisation and Embryology Act 2008.

Chapter 4 of Part 12 makes particular provision for private law proceedings, starting firstly with the First Hearing Dispute Resolution Appointment (FHDRA) which started life in the Private Law Programme.

Rule 12.34 makes provision for the filing of any risk assessment conducted by CAFCASS and for the subsequent service of it on the parties, unless it is necessary to withhold service or edit the assessment in order to prevent harm to the child.

It remains the position under rule 12.35 that where an enforcement order is made, it falls in the first instance to the applicant to personally serve the order on the person subject to it, although the court may direct otherwise.

Chapter 5 of Part 12 (12.36 onwards) deals with wardship proceedings.

Chapter 6 of Part 12 (12.43 onwards) deals with Hague convention and child abduction proceedings.

Chapter 7 of Part 12 (12.72 onwards) deals with Communication of Information in children proceedings and mirrors part XI of the old rules. However old rule 11.5 (along with 11.6-11.9) is not reproduced – it seems likely that something similar will appear in the practice directions referred to in rule 12.72.

Part 13 deals with applications under the Human Fertilisation and Embryology Act 2008.

Part 14 deals with placement and adoption related orders (including contact orders under the Adoption and Children Act 2002).

REPRESENTATION OF PROTECTED PARTIES

Part 15 covers the representation of protected parties. In the case of adults lacking capacity it provides for a Deputy to conduct proceedings, or for a litigation friend to be appointed – if necessary the Official Solicitor. It is in similar terms to the old rules.

REPRESENTATION OF CHILDREN & REPORTS ON CHILDREN

Provisions specifically in relation to the representation of children are contained in Part 16. These also are similar to the old rules, although with rephrasing and in different sequence.

Notably, the sections describing the role and duties of a child’s Guardian are couched in much more general terms than previously, referring to safeguarding and the welfare checklist rather than requiring attendance at every hearing unless permission is given not to attend etc.

Part 16 also deals with the duties and appointment of the various types of reporting and welfare officers who can be appointed from time to time within the different types of children proceedings.

STATEMENTS OF TRUTH

Moving on, part 17 requires most formal documents to be verified by a statement of truth, and provides sanctions for any failure to do so, along with provision for contempt of court proceedings to be brought in limited circumstances for knowingly false and dishonest statements.

APPLICATIONS PROCEDURE

Part 18 and 19 deal with the procedure for applications. Part 18 is the standard way to start proceedings, to make an application in the course of proceedings or after they have concluded. It will not be entirely clear how these two rules operate until the accompanying Practice Directions and any new forms are published, but it appears that in most cases applications are to be made by application notice, setting out what order is sought and why, attaching a draft order.

In response to an application the court may proceed in the absence of a party who has failed to attend or re-list, and as previously noted may dismiss an application which is totally without merit, recording the same on the face of the order and giving consideration to a civil restraint order.

Part 19 alternative procedure has been dealt with above.

INTERIM REMEDIES

Interim Remedies are now dealt with at Part 20 and this rule now helpfully lists the vast majority of pre-existing powers at the disposal of the courts to make interim orders – including some of those that district judges are unsure they are empowered to make. The court is now empowered also to make orders for security for costs of substantive proceedings or appeal.

DISCLOSURE AND INSPECTION

Disclosure and inspection is covered in Part 21 and the courts general powers to control its own proceedings, and the nature and extent of the evidence are reiterated at Part 22: evidence. Also incorporated into that part are aspects of the CPR relating to notices to admit facts or produce documents, rules regarding the service of witness statements and the tendering of the makers of those statements for cross examination. Part 23 deals with other rules of evidence including hearsay. These had previously applied via the CPR in those types of quasi family proceedings to which the FPR did not apply: TolATA, PHA, IA etc.

WITNESS SUMMONSES & DEPOSITIONS

Part 24 makes provision for witness summons and depositions. Depositions were previously only provided for in connection with the Children Act (Adoption) Rules 2005, but are now generally available as a means to obtain evidence (where appropriate). I wonder if this is likely to become a more commonly used method in future? It may be more cost effective, less combative, quicker and an easy way to avoid the difficulties frequently encountered of getting all the necessary parties, witnesses and experts to court on the right day.

EXPERTS

Part 25 deals with experts, and is in line with current practice.

CHANGE OF SOLICITOR

Part 26 deals with change of solicitor and giving notice of it.

HEARINGS & DIRECTIONS APPOINTMENTS

Part 27 sets the general framework for hearings and directions appointments, beginning with the giving of reasons by Magistrates and prompt provision of a copy to all parties (27.2). As previously parties are expected to attend all hearings of which they have notice unless their attendance is excused (27.3). Hearings may properly proceed in the absence of a party providing that it is proved that the non attending respondent received reasonable notice of the date of hearing or the court is satisfied that the circumstances justify proceeding. In the case of a child party the court may proceed in her absence where the child is represented by a Guardian or solicitor who have an opportunity to make representations, including representations from the child herself if of sufficient understanding (27.4). In the case of the non appearance of an applicant the court may refuse the application or proceed. These provisions do not apply where the court is considering making a contact activity direction or order or an enforcement order or compensation order under the various sections 11 of the Children Act 1989 (separate provisions are set out for such hearings at Part 12).

Leading on from the provisions at 27.4 for making orders upon non attendance, there is now a provision for set aside of a judgment or order following non attendance, borrowed from the CPR (27.5) – the onus is therefore now on the party who has failed to attend to demonstrate why it is that their set aside application should be granted – they will have to pass the same hurdles applicable in a civil case, namely that they acted promptly on finding out about the order, that there was a good reason for the non attendance and that they have a reasonable prospect of success at the hearing or directions appointment. Oddly, although rule 27.4 which permits these quasi default judgments to be made applies to all tiers of court, rule 27.5 which empowers the court to set aside such judgments where appropriate does not apply to Magistrates courts. Whilst it is easy to imagine why it may be unwise to leave the application of such legal tests to lay magistrates, it seems then that in cases of peremptory dismissal or refusal of an application by magistrates because a person has failed to attend a hearing their only route of challenge may be an appeal. Of course, if rule 27.4 has been followed by the magistrates any such appeal would be doomed. Perhaps this is a drafting error? I hope so – magistrates do very occasionally get a little over-exercised about things like lateness or non attendance and I would not want this to cause injustice.

The latter parts of Part 27 (27.10 onwards) provide for all hearings covered by these rules to be held in private except where rules or enactment provides otherwise, or where directed not to be private, and for attendance at such hearings to be regulated in the same way as set out in the existing Family Proceedings Rules at 10.28.

COSTS

Broadly speaking the costs provisions remain the same as in the old rules: elements of the CPR costs provisions apply, with the general rule that costs follow the event disapplied. It is now made express at 28.3(5) that the general rule in financial proceedings is that the court will not make an order for costs. 28.3(6) and (7) set out circumstances wherein in financial proceedings it may be appropriate to make a costs order, which are based upon a party’s conduct before or during proceedings. It is clear from the list of circumstances that the court must have regard to that although conduct includes that prior to the initiation of proceedings it is primarily litigation conduct as opposed to marital conduct per se that is the focus of this rule. Financial proceedings encompass not just ancillary relief, but also civil partnership dissolution and schedule 1 applications.

An appeal against a wasted costs order in the Magistrates court by a legal representative lies to the Crown Court. Excellent.

MISCELLANEOUS

Part 29 covers a number of miscellaneous matters. It is now the rule that no party is required to disclose their address or contact details or those of a child unless directed to do so. However those details must still be provided to the court. Other matters covered under this rule are withdrawals of children applications, procedure for cases where a party seeks to rely upon any provision of the Human Rights Act 1998 or seek a remedy provided by it, issues of jurisdiction concerning child maintenance, and matters such as court seals and required formalities to be included on all orders.

The now common practice of arranging for a legal representative to draw up and agree the wording of an order is formalized in rules 29.11. 29.14 provides that a judgment or order takes effect from the day when it is given or made unless the court specifies a later date. The ‘slip rule’ appears at 29.16.

APPEALS

Part 30 represents a significant shift in the procedure for appeal, and constrains rights of appeal yet further. Pursuant to rule 30.3 it will now be necessary to obtain permission to appeal from every decision of a DJ (except in cases where liberty is at stake i.e. committal or secure accommodation) even on a first appeal: the distinction between first and second appeals appears now to have completely collapsed. Appeals from Circuit Judges lie to the Court of Appeal and continue to be covered by Pt 52 CPR.

The general time limit for appeals is 21 days with a shorter period of 7 days in the case of ISOs or ICOs (30.4). As was previously the case all appeals are to be in the form of a review unless the court decides otherwise or any specific and applicable rule or PD makes different provision.

REGISTRATION, RECOGNITION & ENFORCEMENT

This is covered in parts 31 – 35. Part 33 deals with enforcement generally, including by way of committal and other money orders (Third party debt order, charging order, stop orders etc as per CPR Pts 70 onwards).

TRANSITIONAL ARRANGEMENTS & PILOT SCHEMES

Part 36 purports to cover transitional arrangements. However, this refers only to a practice Direction which has not yet been seen so it is unclear what transitional arrangements will be in place for applications begun prior to 6 April 2011.

PS See this post for a little bit more information in light of the subsequent implementation of a related SI.