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