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A procedural code for all family proceedings Family Procedure Rules 2010: A Guide
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Contents... 1
A procedural code for all family proceedings
1.1 Introduction............................................................................................................................. 9
3.12 Part 12: Proceedings relating to children save in relation to parental order,
1.1.1 A brief history............................................................................................................... 9
adoption and placement proceedings....................................................................................... 123
1.1.2 Aims and scope of the rules...................................................................................... 10
3.13 Part 13: Proceeding under section 54 of the Human Fertilisation and
1.2 Modernisation of language.................................................................................................. 12
Embryology Act 2008...................................................................................................................... 168
1.3 Streamlining of procedure and harmonisation with the CPR........................................... 12
3.14 Part 14: Procedure for applications in adoption, placement and
1.4 A single unified code of practice......................................................................................... 13
related proceedings....................................................................................................................... 169
1.5 Alignment with all levels of court.......................................................................................... 14
3.15 Part 15: Representation of protected parties...................................................................... 172
1.6 The rules: a brief overview..................................................................................................... 17
3.16 Part 16: Representation of children and reports in proceedings involving children...... 176
3.17 Part 17: Statements of truth................................................................................................... 185
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Key changes – a brief historical resume....................................................... 28
3.18 Part 18: Procedure for other applications........................................................................... 188
2.1 Modernisation of language and process............................................................................ 28
3.19 Part 19: Alternative procedure for applications................................................................. 191
2.1.1 Language.................................................................................................................... 28
3.20 Part 20: Interim remedies and security for costs.................................................................. 194
2.1.2 Process......................................................................................................................... 29
3.21 Part 21: Miscellaneous rules about disclosure and inspection of documents................. 200
2.2 Matrimonial and civil partnership proceedings.................................................................. 30
3.22 Part 22: Evidence.................................................................................................................... 203
2.2.1 Application by a respondent for a matrimonial or civil partnership order.......... 30
3.23 Part 23: Miscellaneous rules about evidence..................................................................... 210
2.2.2 Parties to proceedings – divorce cases involving allegations of adultery........... 30
3.24 Part 24: Witnesses, depositions generally and taking of evidence in Member
2.2.3 Extending the ‘special procedure’ to applications for the annulment
States of the EU....................................................................................................................... 211
of a marriage or a civil partnership.......................................................................... 31
3.25 Part 25: Experts and assessors................................................................................................ 212
2.2.4 Statement of arrangements for children................................................................. 31
3.26 Part 26: Change of solicitor................................................................................................... 225
2.2.5 Statements of truth instead of affidavits.................................................................. 32
3.27 Part 27: Hearings and directions appointments.................................................................. 226
2.3 Financial proceedings........................................................................................................... 33
3.28 Part 28: Costs........................................................................................................................... 235
2.3.1 The Financial Remedy Procedure............................................................................. 33
3.29 Part 29: Miscellaneous............................................................................................................ 239
2.3.2 Making an application for a financial order........................................................... 34
3.30 Part 30: Appeals...................................................................................................................... 242
2.4 Children proceedings............................................................................................................ 35
3.31 Part 31: Registration of orders under the Council Regulation, the Civil Partnership
(Jurisdiction and Recognition of Judgments) Regulations 2005 and the Hague
Act cases and Private Law Programme.................................................................. 35
Convention 1996............................................................................................................................. 254
2.4.2 Forms for applications under the Children Act 1989.............................................. 36
3.32 Part 32: Registration and enforcement of orders............................................................... 256
2.5 Family proceedings in “magistrates’ courts”...................................................................... 37
3.33 Part 33: Enforcement.............................................................................................................. 258
3.33.1 Non-financial warning and undertaking................................................................. 260
3.33.2 Financial warning and undertaking......................................................................... 261
2.4.1 Protocol for Judicial Case Management in Public Law Children
2.5.1 Aligning rules governing practice and procedure in the “magistrates’ courts”
with those of the High Court and county courts..................................................... 37
2.5.2 Single lay justice.......................................................................................................... 38
2.5.3 Financial proceedings................................................................................................ 38
3.35 Part 35: Mediation Directive.................................................................................................. 266
2.5.4 Procedural changes................................................................................................... 39
3.36 Part 36: Transitional provisions............................................................................................... 266
2.6 Appeals.................................................................................................................................... 43
3.37 Part 37: Applications and proceedings in relation to contempt of court....................... 268
2.6.1 Process of appeal....................................................................................................... 43
2.6.2 Route of appeal.......................................................................................................... 44
3.34 Part 34: Reciprocal enforcement of maintenance orders................................................ 261
4 Conclusion.............................................................................................................................. 278
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The rules explained......................................................................................................... 44
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3.1 Introduction............................................................................................................................. 44
Experts in the family courts: guide and sample questions ........................................................ 292 Template pro-formas for preliminary enquiries of experts in family proceedings.................... 308
3.2
Part 1: Overriding objective....................................................................................... 45
Law Society Appendices
3.2.1 What is the overriding objective?............................................................................. 45
Template pre-proceedings letter of instruction to experts in family proceedings.................. 314
3.3 Part 2: Interpretation.............................................................................................................. 48
Template letter of instruction to experts in family proceedings................................................. 320
3.4 Part 3: Non-Court dispute resolution.................................................................................... 51
Standard terms and conditions to accompany a letter of instruction to
3.5 Part 4: Case management powers...................................................................................... 62
experts in family proceedings........................................................................................................ 329
Template Local Authority case summary in care proceedings applications.......................... 339 Good practice in drafting care proceedings documents........................................................ 346
3.5.1 Limited civil restraint order......................................................................................... 67
3.5.2 Extended civil restraint order..................................................................................... 67
3.5.3 General civil restraint order....................................................................................... 68
Template schedule of proposed findings in care proceedings applications.......................... 350
3.6 Part 5: How to start proceedings.......................................................................................... 75
Template threshold statement in care proceedings applications............................................ 354
3.6.1 Application for a matrimonial order......................................................................... 76
3.6.2 Statement of arrangements form............................................................................. 77
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General Appendices
3.6.3 Answer.......................................................................................................................... 77
Child arrangements programme: flowchart............................................................................... 358
3.6.4 Form A (A1 in the family proceedings court).......................................................... 77
Public Law Outline 2014 (26 weeks).............................................................................................. 359
3.6.5 Forms E, E1 and E2...................................................................................................... 78
3.6.6 Form C1A..................................................................................................................... 78
3.6.7 Form C2........................................................................................................................ 79
3.6.8 Form C5........................................................................................................................ 79
3.6.9 Form C100.................................................................................................................... 79
3.6.10 C110A........................................................................................................................... 80
3.6.11 Other forms.................................................................................................................. 80
3.7 Part 6: Service.......................................................................................................................... 81
3.7.1 Chapter 2 (rules 6.3–6.22) (Service in Matrimonial or Civil
Partnership Proceedings)........................................................................................... 82
3.7.2 Chapter 3 (rules 6.23–6.39) (Service in other Proceedings)................................... 85
3.7.3 Chapter 4 (rules 6.40–6.48) (Service out of the Jurisdiction).................................. 86
For Matthew
3.8 Part 7: Procedure for applications in matrimonial and civil partnership
proceedings................................................................................................................ 87
3.8.1 Commencing and responding to proceedings..................................................... 88
3.8.2 Procedure for determining applications for a matrimonial or civil
and in loving memory of
partnership order........................................................................................................ 92
3.8.3 Orders of the court..................................................................................................... 96
Catherine Parker
3.9 Part 8: Procedure for miscellaneous applications.............................................................. 97
3.9.1 Declarations (Chapter 5 Rules 8.18 – 8.22).............................................................. 97
3.9.2 Application for permission to apply for a financial remedy after overseas .......
and William
proceedings (Chapter 6 Rules 8.23 – 8.28))............................................................. 98
3.9.3 Transfer of tenancy under Schedule 7 to FLA 1986
(Chapter 7 Rules 8.29 – 8.34)).................................................................................... 100
3.10 Part 9: Applications for financial remedy............................................................................ 100
3.11.1 Part 10: Applications under Part 4 of the Family Law Act 1996...................................... 117
3.11.2 Part 11: Applications under Part 4A of the Family Law Act 1996................................... 119
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1
A procedural code for all family proceedings
Family Procedure Rules 2010: A Guide A procedural code for all family proceedings
1.1 Introduction 1.1.1 A brief history The Courts Act 2003, s.75 established a new power to make one set of simple and plainly expressed self-contained rules for all family proceedings such that the family justice system is accessible to all as well as being both fair and efficient. In order to achieve that end, Her Majesty’s Courts Service and the Family Procedure Rules Committee were charged in 2004 with delivering a new set of unified Family Procedure Rules applicable to all tiers of court. Initially, this resulted in the Family Procedure (Adoption) Rules 2005, SI 2005/2795. Their next task was to complete the process for all family proceedings, which led to a consultation paper produced by the then Department for Constitutional Affairs (CP 19/06) dated 30 August 2006, the consultation to which closed on 1 December 2006. The responses to that consultation were produced on 22 February 2008 by Her Majesty’s Courts Service (CP(R) 19/06). The new Family Procedure Rules 2010, SI 2010/2955 (FPR 2010) were ultimately laid before Parliament on 17 December 2010 and came into operation on 6 April 2011. They were supported by Practice Directions issued by the President with the agreement of the Lord Chancellor pursuant to section 81 of the Courts Act and Part 1 of Sch 2 to the Constitutional Reform Act 2005. Some of the Practice Directions replicated existing ones, others were entirely new. Whilst there was no provision formally revoking the previous Family Proceedings Rules 1991 the old rules were revoked by operation of law and by implication due to the fact that the new rules are described as a ‘new procedural code.’ The Family Procedure Rules Committee continues to meet as, like the CPR 1998, periodic amendments are being and will continue to be made to correct any errors and to improve their overall effectiveness.
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1.1.2 Aims and scope of the rules The rules ‘provide a new code of procedure for family proceedings in the High Court, county courts and magistrates’ courts, and replace existing rules of court for family proceedings’ (FPR 2010, Explanatory note). The significance of the FPR 2010 (which extend to over 300 pages and which have been six years in the making) cannot be overstated both as to the extent of unification of all previous rules relating to family proceedings across both High Court and the family court and in respect of their dovetailing with the Civil Procedure Rules 1998, SI 1998/3132 (CPR). The new rules modernise many aspects of the previous procedures and borrow extensively from the CPR in respect of a number of new powers which family practitioners have had to familiarise themselves with. This entailed some substantive changes, such as the inclusion of strike-out provisions, the power to make a Civil Restraint Order and the wider requirement for permission to appeal. In essence, the new Family Procedure Rules replace all previous rules governing practice and procedure in family proceedings, including in particular the following:Family Proceedings Rules 1991, SI 1991/1247 (FPR 1991); Family Proceedings Courts (Children Act 1989) Rules 1991, SI 1991/1395; Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991, SI 1991/1991 (in so far as these rules do not relate to enforcement or variation of orders); Family Procedure (Adoption) Rules 2005, SI 2005/2795; Maintenance Orders (Facilities for Enforcement) Rules 1922; Magistrates Courts (Guardianship of Minors) Rules 1974; Magistrates Courts (Reciprocal Enforcement of Maintenance Orders) Rules 1974, SI 1974/668; Magistrates Courts (Reciprocal Enforcement of Maintenance Orders) (Republic of Ireland) Rules 1076; Magistrates Courts (Child Abduction and Custody) Rules 1986; Magistrates Courts (Civil Jurisdiction and Judgements Act 1982) Rules 1986; Magistrates Courts (Reciprocal Enforcement of Maintenance Orders) (Hague Convention Countries) Rules 1986;
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Magistrates Courts (Costs against Legal Representatives in Civil Proceedings) Rules 1991 (in so far as these relate to family proceedings); Magistrates Courts (Reciprocal Enforcement of Maintenance Orders) (United States of America) Rules 1995; and Magistrates Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (in so far as these relate to family proceedings)
(For a full list of the rules which were replaced see PD 36A) The FPR 2010 thus provides for a single set of rules of court and codes of procedure for all family proceedings, be they proceeding in the High Court or family court, based upon the model set out in the CPR. They also draw from attempts to forge a unified family court as first envisaged in the Finer Report of 1974 and which has now become a reality pursuant to Section 17 and Schedules 10 and 11 of the Crimes and Courts Act 2013. Like the CPR, they are supplemented by dedicated practice directions (PDs) and forms, establishing a modern, consolidated comprehensive code of family procedure across all tiers of court and in relation to all types of proceedings. Not only does this have the benefit of bringing together various procedural provisions into one single package but it enables further future amendments and updates to the rules to be made more simply and cohesively as opposed to the multitude of changes to a wide set of rules, guidance and forms as was the case in the past. The initial consultation documents to the new rules set out four key objectives that the FPR 2010 intended to achieve:
•
modernisation of language;
•
streamlining of procedure and harmonisation with the CPR;
•
a single, simply expressed unified code of practice and procedure similar
to the CPR for all family proceedings;
alignment in all levels of court.
•
1.2 Modernisation of language As the aims which led to the development and phraseology of the CPR included, notably, the reduction in complexity and modernisation of terminology, it was similarly recognised that the existing family proceedings rules contained what some regarded as outdated language.
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The FPR 2010 therefore involved a fundamental review of language and style ditching what was perceived as outdated language in favour of their more modern equivalent. Gone from the new rules are ‘cause lists’ and ‘special procedure’. ‘Permission’ has replaced ‘leave’, ‘without notice’ replaces ‘ex parte’ and ‘permission to apply to the court’ replaces ‘liberty to apply’. The Court now acts ‘on its own initiative’ as opposed to ‘own motion’. It was also the intention to take out ‘prayer’, ‘decree nisi’ and ‘decree absolute’ but the costs of updating the court’s own software proved prohibitive meaning that the terms remain for now. In addition to modernising the general language of the rules, the opportunity has also been taken to introduce new terms to describe certain procedures and documents. In summary, the modernisation of language, the streamlining of proceedings and the new reformatted forms with accompanying comprehensive guidance notes are all aimed at assisting the litigant in person who are likely to become an ever – increasing minority before the courts in family proceedings given the dramatic erosion of public funding over the past few years and particularly since the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1st April 2013.
1.3 Streamlining of procedure and harmonisation with the CPR The Committee charged with reform felt that it was wholly unsatisfactory that the old Rules of the Supreme Court and County Court Rules which had been revoked for civil proceedings were still relied upon in family proceedings. As far as possible, therefore, the Family Procedure Rules 2010 have been harmonised with and modelled on the Civil Procedure Rules so that we have one set of simply expressed rules of court for all family proceedings supplemented by dedicated practice directions and forms. It is important to note however that the accompanying Practice Directions (like their CPR equivalents) do not have legislative force:“Practice directions provide invaluable guidance to matters of practice in the ……..courts, but in so far as they contain statements of the law which are wrong they carry no authority at all”
(KU (A Child) v LCC (2005) EWCA Civ 475)
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1.4 A single unified code of practice The Courts Act 2003, s.75 (5) sets out the objective that the FPR 2010 should be made with a view to securing that: (a) the family justice system is accessible, fair and efficient; and (b) the rules are both simple and simply expressed. It was widely recognised that the previous rules governing practice and procedure within the family jurisdiction were a mishmash, contained as they were in a number of different statutory instruments, as listed in 1.1.2 as well as the County Court Rules 1981, SI 1981/1687 and Rules of the Supreme Court 1965, SI 1965/1776. The result was that in many cases the exact practice and procedure which needed to be applied in any given case could be difficult to locate, were sometimes outdated and, more importantly, out of line with that of the CPR which have widely been regarded as a success. To further add to the family practitioner’s woes there were a plethora of practice directions, protocols and other forms of guidance, many of which were often not followed or even known about! Accordingly, as with the CPR, in order to achieve simplification and accessibility, the FPR 2010 are accompanied and supported by a mandatory set of practice directions and pre-action protocols easily located and understandable so as to provide, at the fingertips of all court users, detailed procedural guidance. Furthermore, many of the longer provisions of the previous rules have been broken down into shorter rules for the sake of clarity. In essence the pre-action protocols tells you what you are expected to do prior to the instigation of proceedings, the rules set out what one has to do once proceedings are issued and the practice directions tell you how you should do it by amplifying the requirements of the rules. The FPR 2010 therefore establish a comprehensive code of family procedure replacing a large body of previously unconsolidated rules, forms for different courts and different types of proceedings and provide a new, single set of rules, which apply to all levels of family courts. Furthermore, the scope of the court’s case management powers and its ability to control the evidence adduced by the parties is now comprehensively set out in the Family Procedure Rules and thus codify what had previously been a common law power upon the court to control its own process and procedure. 13
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Clearly, such transparency will be ever increasingly important given, as stated previously, the gradual erosion of publicly funded services and the rise in numbers of litigants in person.
1.5 Alignment with all levels of court Historically, the jurisdiction of magistrates’ courts in family proceedings had been different from the jurisdiction of the High Court and county court which resulted in the development of differing rules of court governing both practice and procedure. The rules of court governing practice and procedure in family proceedings (with the exception of adoption proceedings) at High Court and county court level were, of course, contained in the Family Proceedings Rules 1991. The Children Act 1989 (CA 1989) brought into existence the Family Proceedings Court, the rules for which mirrored to a large extent those regulating applications in the High Court and county court. However, even then, the rules of court governing practice and procedure in family proceedings in what was the magistrates’ court (excluding adoption proceedings) were contained in a plethora of statutory instruments, principally:
•
the Magistrates’ Courts Rules 1981, SI 1981/552;
•
the Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991,
SI 1991/1991; and
the Family Proceedings Courts (Children Act 1989) Rules 1991, SI
•
1991/1395. The FPR 2010 provided for an even closer alignment of practice and procedure between what were three tiers of court as they governed both practice and procedure in all levels of family proceedings, be they progressing in the High Court, county court or magistrates’ court (family proceedings court). This has now been made even more ‘unified’ due to the creation of the single Family Court as provided for in the Crime and Courts Act 2013. Section 17, together with Schedule 9, 10 and 11 of the Act makes provision for the establishment of a single County Court for England and Wales, replacing the structure of individual county courts for specific districts, and for the establishment of a family court, replacing the structure of family proceedings spread across magistrates’ court, county courts and the High Court. The aim of these changes is to tackle delays and to improve judicial continuity.
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As far as the Family Procedure rules are concerned this is implemented by the Family Procedure (Amendment No.3) Rules 2013 the stated aim being to have family proceedings dealt with at the correct level of judiciary in the most suitable location and as expeditiously as possible through the centralised allocation of work. Through those enactments the jurisdiction formerly exercised by magistrates’ courts and county courts in relation to family proceedings, and enforcement of orders made in family proceedings, held by magistrates’ courts and county courts, is removed. In particular these Rules amend the following Parts of the FPR 2010:(a) Part 2 (application and interpretation) to state that the FPR 2010 apply in family proceedings in the High Court and the family court, and to make consequential amendments to rule 2.3 FPR 2010 (interpretation) and to rules relating to powers to perform functions of the court; (b) Part 7 (procedure for applications in matrimonial and civil partnership proceedings) to reflect the fact that with the advent of the family court, divorce county courts and civil partnership proceedings county courts no longer exist, the fact that the Principal Registry of the Family Division of the High Court is no longer to be treated as such a county court, and the fact that the family court is a national court for England and Wales; (c) Parts 10 (applications under Part 4 Family Law Act 1996) and 12 (certain children proceedings) to remove provisions relating to transfer between courts (given the national nature of the family court) and to remove references to county courts and magistrates’ courts; (d) Parts 13 (procedure under section 54 Human Fertilisation and Embryology Act 2008) and 14 (procedure for applications in adoption, placement and related proceedings) to make cross-references to the new rule 29.17 on transfers between the High Court and the family court, to put in place a single procedure for applications for recovery orders and to remove references to magistrates’ courts; (e) Part 29 (miscellaneous) to make new provision in respect of the transfer of proceedings between the High Court and the family court, and to clarify that the Part 18 procedure applies in respect of an application to the family court for proceedings to be heard in a different Designated Family Judge area; (f) Parts 32 (registration and enforcement of orders) and 34 (reciprocal enforcement of maintenance orders) to-
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reflect the fact that magistrates’ courts will no longer deal with these
proceedings;
-
in the High Court for enforcement purposes; and
-
incorporate into the FPR 2010 procedures in relation to enforcement which
were previously set out in the Magistrates’ Courts (Enforcement or
Variation of Orders Made in Family Proceedings and Miscellaneous
Provisions) Rules 2011 (S.I. 2011/1329).
Further amendments have been made by The Family Procedure (Amendment No. 2) Rules 2014 (2014 No. 667) which in addition inserts a new Part 37 which makes freestanding provision in relation to applications and proceedings in relation to contempt of court. It also introduces a requirement to obtain permission to appeal from a decision of a District Judge (Magistrates’ Courts) and new time limits for filing an appellants notice and respondent’s notice where there is an appeal or application for permission to appeal against a case management decision. Thus the new single Family Court (called simply “The Family Court”) will now deal with all family proceedings, except for a limited number of matters, which will be exclusively reserved to the High Court (inherent jurisdiction cases and international cases under the Hague Convention or Brussels IIA)and accordingly the family proceedings court ceases to exist. All applications for the issue of proceedings will now be made to a single point of entry namely the local Family Court and a centralised and unified administration which will then be allocated by “gatekeepers” to a level of judge according to their type and complexity. The Family Court being a national court will be able to sit anywhere. In practice it will generally sit at the county and magistrates’ courts where family cases are already heard. There will be at least one Designated Family Centre in each Designated Family Judge area. The Principal Registry of the Family Division is now called the Central Family Court. However, the Principal Registry of the Family Division will still exist as a division of the High Court in the Royal Courts of Justice. Although Magistrates’ courts and the new single County Court will not be able to deal with family proceedings, as the Family Court can sit anywhere in England and Wales, it will be possible for it to sit in county or magistrates’ court buildings. As all levels of judge will be able to sit in the same building this will help reduce unnecessary delays caused by cases transferring between different courts.
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Justices’ clerks and their assistants will also be authorised to assist all judges across the Family Court (including on undefended divorce cases), allowing judges to focus their time on more difficult cases. The single Family Court aims to provide court users with effective access to justice whilst seeking ways to improve the efficiency of the justice system as a whole. A single Family Court will allow magistrates, legal advisers and the judiciary to work more closely together. Lay magistrates and all levels of judges will be able to sit in the Family Court. The changes mean that most proceedings will now be issued by the Family Court and cases allocated as soon as possible to the appropriate level of judge. This also means that cases will no longer need to be transferred between the old tiers of court. This will help reduce delay and wherever possible, ensure greater judicial continuity. On the ground practitioners may notice little difference other than the heading to orders which will now read: “In the Family Court sitting at ………” for what were formerly County Court and Family Proceedings Court matters. However interesting questions are posed in relation to the consolidation of Trusts of Land and Appointment of Trustees Act 1996 (which is regulated by the CPR) and Children Act 1989 Schedule 1 claims (which are family proceedings) as these now lie in two distinct branches of court neither having jurisdiction over the other. Furthermore the Schedule to the Allocation and Gatekeeping Guidance issued on the 22 April 2014 now places international relocation cases (whether for temporary or permanent relocation) into three broad categories: (1) Cases involving proposed moves to countries which are not signatories to the 1980 Hague Convention on child abduction - High Court Judge (2) Cases involving proposed moves to countries which are signatories to the 1980 Hague Convention - district judge (3) Cases involving proposed moves to countries which are signatories to the 1980 Hague Convention but which are unusually complex in legal or factual terms - district judge or, exceptionally, circuit judge. This provides as sharp contrast to the previous position as set out in Re D (Children) [2009] EWCA Civ 957 where it was stated that circuit judges should normally hear international relocation cases, and that district judges should hear them only if the particular judge had special experience to make them suited to such cases.
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1.6 The rules: a brief overview Knowledge of the rules applicable to any jurisdiction is essential: ‘those practising in civil courts are expected to know the rules and practise them; it is gross incompetence not to’
Earles v. Barclays Bank [2009] EWHC 2500 ‘The cases, however, which have been cited and commented on at the bar, appear to establish, in general, that he is liable for the consequences of ignorance or non-observance of the rules of practice of this court’.”
Godefroy v. Dalton (1830) 6 Bing. 460 The overall structure of the rules is as follows:
•
Introductory: overriding objective and case management
•
Issue and conduct of proceedings in specified types of cases
•
Procedural aspects of evidence
•
Hearings and Orders
• Appeals • Costs • Enforcement Parts 1 to 6 ‘provide for fundamental matters of general application and various preliminary matters’ (FPR 2010, Explanatory note). Like the CPR, the FPR 2010 commences in Part 1 with a statement of their overriding objective which now encompasses all types of family proceedings. As with the CPR, the overriding objective is to enable the court to deal with cases justly; but the particular nature of the issues raised in family proceedings is addressed by highlighting ‘welfare issues’, such that the key objective in the FPR 2010 is that of enabling the court to deal with cases justly, having regard to any welfare issues involved (a departure from their CPR equivalent). Part 2 contains the provisions for interpreting and applying the rules including provision as to the delegation of certain functions of a magistrates’ court to a single justice, thus hopefully promoting the maximisation of the court’s resources and in turn reducing delay. The FPR 2010 continues in the next four parts to follow the structure of the CPR. There is, however, a family-specific modification by way of Part 3 which is devoted to the court’s powers in relation to encouraging alternative dispute resolution (now known as “non-court dispute resolution”) and to adjourn for such purpose. 18
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The courts general case management powers are set out in Part 4 and provides a judge with a formidable arsenal of ‘powers’ to facilitate case management. Case management may be described as ‘a judicially controlled process guiding an application towards a specific objective in a way which is fair, just, humane and child centred and at a reasonable cost within a reasonable timescale’. Part 4 accordingly contains provisions for the exercise of those case management powers and encompasses the ability to require a party’s legal representative to attend court, to hold a hearing or to receive evidence by phone or other method of direct oral communication. Part 5 provides for all the forms which are to be used in family proceedings and how family proceedings are commenced. Part 6 makes provision for service of documents in family proceedings including service abroad. Of particular 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 be routinely served on the guardian, the Children and Family Court Advisory and Support Service (CAFCASS) or the local authority if they are preparing a report under CA 1989, s.7 or for the purposes of a special guardianship order or family assistance order. Parts 7 to 14 ‘make provision for procedure for the key types of family proceedings’ (FPR 2010, Explanatory note), including applications in matrimonial (including divorce) and civil partnership proceedings (Part 7), applications for a ‘financial remedy’ (Part 9) and most children proceedings (Part 12). As with the CPR, the FPR 2010 provide for two standard ‘generic’ forms of procedure (Parts 18 and 19), which is in addition to the specific dedicated provisions with regard to procedure for various specific proceedings contained within Parts 7 to 14 (the two generic procedures being available for all other matters) The ‘Part 18 procedure’ is the procedure used to commence proceedings:
•
where there is no specific procedure prescribed;
•
where an application is required within existing proceedings; and
•
in relation to proceedings which have been concluded.
The ‘Part 19 procedure’ is for cases where the Part 18 procedure does not apply (for instance because a rule or practice direction prohibits its usage) and:
•
there is no prescribed form for the application; or
•
the applicant is seeking the court’s decision on a matter which is unlikely
to involve a substantial dispute of fact; or
its use is necessitated by a rule or practice direction.
•
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The dedicated procedural provisions for specific applications are as follows:
•
Part 7 – The procedure for matrimonial and civil partnership proceedings.
•
Part 8 – The procedure for various miscellaneous proceedings such as
a gender recognition certificate, declarations under the Family Law Act
1986, permission to apply for financial relief after an overseas divorce and
transfer of tenancy applications under Sched. 7 to the Family Law Act
1996 (FLA 1996).
Part 9 – The procedure for applications for a financial remedy (formerly
•
‘ancillary relief’) but now also including proceedings under CA 1989,
Sched.1.
•
Parts 10 and 11 – The procedure for domestic violence and forced
marriages under Parts 4 and 4A respectively of the Family Law Act 1996.
Part 12 – The procedure for children applications save for parental,
•
adoption and placement orders.
Part 13 – The procedure for applications for parental orders under the
•
Human Fertilisation and Embryology Act 2008, s.54.
Part 14 – The procedure for adoption and placement proceedings.
•
Parts 15 and 16 make provision corresponding to CPR Part 21 for the representation of, and other issues relating to, children and protected parties. The plethora of guidance and practice directions relating to the separate representation of children has been distilled into one distinct part (Part 16). Although it is modelled on the previous rules, the child’s representative is now called ‘the children’s guardian’ (even in private law proceedings) as opposed to ‘guardian ad litem’. Part 16 and the accompanying practice direction also deals with the duties and appointment of a child’s guardian as well as the various types of reporting and welfare officers who are appointed from time to time within the different types of children proceedings. In particular, PD 16A, Part 3 sets out the duties of a children’s guardian in specified proceedings and adoption as well as in private law cases. The duties of the children and family reporter are found in Part 6. Part 5 deals with reporting officers in adoption, Part 7 with parental orders in Human Fertilisation and Embryology Authority (HFEA) cases and Part 8 covers risk assessments and contact enforcement. Thus, one only has to look in one place for the rules about the various roles a family court reporter may undertake in all levels of court and in any type of proceedings. FPR 2010, Part 17 makes provision about statements of truth and when they are required to verify documents mirroring that of CPR Part 22. FPR 2010, Part 18 deals with the procedure for other applications in proceedings, 20
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such as applications seeking permission to bring proceedings. Part 19 deals with the alternative procedure for applications, such as applications seeking an order to prevent disclosure of information to an adopted person pursuant to Adoption and Children Act 2002, s.60 (3). The remaining parts of the rules are of general application and contain procedural provisions mirroring (subject to various modifications) the comparable parts of the CPR. Part 20 deals with interim remedies/injunctions and now helpfully lists the vast majority of pre-existing powers of the court to make interim orders as well as orders as to security for costs for which the Part 18 procedure must be followed. Contained within the accompanying PD 20A are detailed provisions in respect of search orders which are no doubt in response to the decision in Imerman v. Imerman [2010] EWCA Civ 908 but unlike their CPR equivalent does not contain a template of the orders themselves for use in family Proceedings which would have been helpful (see UL v BK (2013) EWHC 1735) Parts 21 – 25 deal with rules relating to the procedural aspects of evidence. Disclosure and inspection of documents are dealt with within Part 21, notable for which is r 21.2 which introduces third party disclosure/inspection appointment applications in all family proceedings. Parts 22 to 24 contain rules about evidence analogous to the CPR including notices to admit and hearsay notices, powers to limit oral evidence and detailed provisions about the form and preparation of documentary evidence. Comprehensive rules and guidance are set out regarding the instructions of experts and assessors in Family Proceedings in Part 25 (which replaces CPR 35). Change of solicitor is dealt with by Part 26. Part 27 deals with hearings and directions appointments and includes provisions relating to the giving of reasons in a magistrates’ court. FPR 27.3 requires the attendance of a party at a hearing or directions appointment which that party has been given notice of, unless otherwise directed by the Court. In respect of the costs rules, which are contained in Part 28, the main costs provisions of the CPR (Parts 44 and 47) are applied to family proceedings with various modifications reflecting the fact that, as a general rule, the court will not normally make a costs order in proceedings for a financial remedy save in cases of litigation misconduct (r 28.3). However, Rule 28.3 does not apply to applications for an interim financial order (other than interim variation) and applications for orders under S15 and Schedule 1 of the Children Act 1989.
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Part 29 contains miscellaneous provisions including those relating to withdrawal of proceedings, protection of personal details in proceedings, Human Rights Act 1998 issues and remedies raised within family proceedings, issues of jurisdiction concerning child maintenance, and matters such as court seals and required formalities to be included on all orders. Part 30 deals with appeals and is based on CPR 52 and now applies to all appellate courts. Permission is now required from the decision of a district judge (including those sitting in the magistrates court) or costs judge, except where the appeal is against a committal order or a secure accommodation order. The appellant’s notice must now be filed within 21 days of the decision or order, unless the court directs otherwise. Appeals are limited to a review of the decision unless other provision is made by an enactment or Practice Direction or the court considers that it would be in the interests of justice to hold a rehearing. Parts 31, 32 and 34 cover the procedure in relation to international recognition and enforcement of certain orders in family matters and reciprocal enforcement of maintenance orders. In particular, Parts 31 and 32 deal with registration and enforcement of foreign orders (including Scottish or Northern Irish orders). Part 33 applies certain parts of the CPR, with appropriate modifications, to the enforcement of orders generally in family proceedings made in the High Court and county courts including committal and other money orders as well as undertakings. A new mechanism for the making of an application for the enforcement of an order for the payment of money is introduced that enables a party to apply for an order for ‘such method of enforcement as the court may consider appropriate” (r 33.3(2)) Part 34 deals with the reciprocal enforcement of maintenance orders. Part 35 relates to the EU Mediation Directive (i.e. mediated cross-border disputes that are subject to Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters). Part 36 makes provision for transitional arrangements which mirrors that of Part 51 of the CPR the ‘overriding objective’ however applying to all existing proceedings from 6th April 2011 in any event. Part 37 is a new part brought in by the Family Procedure (Amendment No. 2) Rules 2014 which provides for freestanding provisions within the rules in relation to applications and proceedings for contempt of Court. There are also a number of detailed supplementary provisions which support many parts of the rules and are contained within practice directions.
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Sign up today A procedural code for all family proceedings is a FREE interactive E-Publication brought to you by the SOLICITORS group.
This publication seeks to provide a self-contained definitive up to date guide on the new rules and a detailed commentary on their practical application.
The Family Procedure Rules 2010 provides a single set of rules for family proceedings in both the Family Court and High Court.
About the Author:
Since its implementation on 6 April 2011 it has seen considerable changes not least of which is in relation to new provisions in relation to the instruction of Experts, the advent of the single family court on 22 April 2014 and changes brought about by the Children and Families Act 2014 in relation to both Private and Public Law Children Proceedings.
Stephen Parker LL.B MCIArb is an experienced family law Solicitor with Greens LLP Birmingham. He is a member of both the Law Society’s Children and Advanced Family Law Panels and an accredited specialist with Resolution. He is a High Court Advocate and is a Deputy District Judge and Family Law Arbitrator
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2
Key changes – a brief historical resume
2.1 Modernisation of language and process 2.1.1 Language Since the modernisation brought about by the Civil Procedure Rules it was clearly only a matter of time before the language contained in the Matrimonial Causes Act 1973 (MCA 1973) (cause and petition, to name but a few) would be viewed as increasingly out of synch with the modern world. Accordingly, which for some will be a fundamental review of language and style, the new rules remove what was previously perceived to be outdated terminology and puts in place more modern user-friendly plain-English style equivalents which mirrors that of the CPR.
Old term New term
Dissolution order
Civil partnership order
Decree of divorce
Matrimonial order
Decree of nullity
Matrimonial order
Decree of judicial separation
Matrimonial order
Ancillary relief
Application for a financial order
Matrimonial cause
Proceedings for a matrimonial order
Petition Application Petitioner Applicant Party cited/co-respondent
Second respondent
Avoidance of disposition order
Avoidance of disposition order/order
preventing a disposition Maintenance pending suit
Maintenance pending suit/
maintenance pending outcome of proceedings
Ex parte Without Notice
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Leave Permission
Summons Application/Application Notice
2.1.2 Process Power to make a civil restraint order The power to make a civil restraint order really is a major development and the effect is even more draconian than that of a section 91(14) bar under the CA 1989. Civil restraint orders are primarily a weapon utilised within the civil jurisdiction to control an abuse of process. A civil restraint order is an order restraining a party from: (a) making any further applications in current proceedings (a limited civil
restraint order);
(b) issuing any further applications or making certain applications in specified
courts (an extended civil restraint order); or
(c) issuing any claim or making any application in specified courts (a general civil
restraint order), without permission of a judge.
Within the CPR (rule 3.3(7)) there is provision, where a court dismisses an application, to consider whether to make a civil restraint order, if the court considers that the application was totally without merit. There is now contained within the FPR 2010 a provision similar to that as previously contained in the Family Procedure (Adoption) Rules 2005, rule 16 and contained within CPR Part 3 and the accompanying practice direction. Electronic service of documents Under the former rules, service by email was not permitted (FPR 1991, rules 10.2 and 10.3). Furthermore, documents could only be served by fax where the party being served was represented by a solicitor who agreed to that form of service. Even then, to be effective, a hard copy of the document faxed had to also be sent by post. In the twenty-first century this archaic approach to modes of service clearly needed revisiting. Under CPR rule 6.2(1)(d) and para.4 of the accompanying practice direction, service by both email and fax is allowed, even on those not represented by a solicitor, 29
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provided there is written agreement to that effect. Neither is it necessary to follow this up with a hard copy by way of ordinary post. The FPR 2010 replicates these provisions by introducing service by email, which clearly underpins the objective of modernisation. However, given the personal and often sensitive nature of the proceedings and the perceived lack of security compared to other modes of service (a misguided perception, in the author’s view), more stringent restrictions have been imposed on the use of electronic service in the FPR 2010 than in their CPR equivalents.
2.2 Matrimonial and civil partnership proceedings 2.2.1 Application by a respondent for a matrimonial or civil partnership order Under the previous rules, respondents to a divorce petition could file a cross-petition which in turn could be met with an answer and so on which often created a duality of proceedings and degree of complexity which could be confusing to manage even when matters are subsequently compromised by way of cross-decrees. Under the FPR, the aim of which is to manage claims conveniently and effectively, all applications, whether for a matrimonial or civil partnership order, made by a respondent will be treated as an application in the original proceedings reflective of the current practice in CPR Part 20 (Counterclaims and other additional claims). Respondents in such circumstances will be subject to stricter time limits, as any such application must be made within 21 days of the date by which the respondent is to acknowledge service of the original application, unless permission of the court is sought and obtained for an extension of time.
2.2.2 Parties to proceedings – divorce cases involving allegations of adultery Both Resolution’s Code of Practice and the Law Society’s Family Law Protocol recommend that, in a divorce petition based upon an allegation of adultery, solicitors should discourage their clients from naming the co-respondent in order to foster a conciliatory approach and thus reduce any potential for further animosity. The FPR by way of a practice direction reinforce this. In the event that an applicant does choose to name the person with whom the respondent is alleged to have committed adultery, that person will be made a party automatically, as it is considered inappropriate to deny such a person named in proceedings the opportunity to refute those allegations.
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2.2.3 Extending the ‘special procedure’ to applications for the annulment of a
marriage or a civil partnership
Under the previous rules, undefended divorces and dissolution cases were dealt with under what was known as the ‘special procedure’ (FPR 1991, rule 2.24(3)) whereby the court would consider, on paper only, the petition, acknowledgement of service, the supporting affidavit and, if satisfied that the petitioner has proved his/her case, would issue a certificate of entitlement to the decree. If the court was not so satisfied, a request for further information would be made or the case removed from the special procedure list and a hearing set. Under such rules, the ‘special procedure’ could not be used in cases of nullity, even when undefended. The FPR, however, now provide that undefended nullity cases can be dealt with using the ‘special procedure’, unless the court, in the exercise of its discretion, considers that a hearing is necessary. (Note that the terms ‘special procedure’ and ‘request for directions for trial’ have been abandoned in favour of the more apt ‘application for decree nisi/conditional order’.) This is a positive development as one can argue that there appears little merit in having a hearing in an uncontested nullity case which unnecessarily adds to the costs of the proceedings, use of court time and distress to the parties, where the matter can quite easily be disposed of on paper, much in the same way as an undefended divorce is conducted.
2.2.4 Statement of arrangements for children In divorce, dissolution, nullity, or judicial separation proceedings, wherever there is a child of the family who is under the age of 16, or between 16 and 18 and receiving education or training at an educational or vocational establishment, the petition must be accompanied by a statement containing information about the arrangements to be made for such child(ren) in order to enable the court to fulfil its duty under the MCA 1973, s.41 or under the Civil Partnership Act 2004, s.63 (namely, whether the court needs to exercise its powers under CA 1989 and, if so, to what extent). In the run up to the implementation of the FPR 2010 there was some debate as to the relevance of some of the questions posed, bearing in mind that there is a clear overlap between the information provided by the form, the contents of the petition and the information contained within applications made pursuant to CA 1989, s.8.
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For example, specific details of the accommodation in which the children reside (namely the number of rooms, etc.) may be of debatable relevance, as this may change over the course of time as the proceedings progress due to a future move. In reality, what is required was sufficient information to enable the court to discharge its statutory function. One of the aims of the Family Procedure Rules Committee was to decrease the amount of information which previously was often repeated in both petition and statement of information, thus reducing the length of the forms, saving time and reducing the amount of information required. Accordingly, a new shorter revised Statement (Form D8A) contained less repetition of information and was been simplified to include:
•
details of the children’s names, dates of birth and gender;
•
whether any of the children have special health or educational needs;
•
whether there are, or have previously been, any other court proceedings.
By virtue of Section 17 of the Children and Families Act 2014 this form has now been dispensed with altogether given that sections 41 MCA 1973 and 63 CPA 2004 have now been repealed.
2.2.5 Statements of truth instead of affidavits An affidavit is a written statement in the name of a person by whom it is voluntarily signed and sworn or affirmed which is intended to be used as his or her evidence in court. To be given as evidence in family proceedings the affidavit must be sworn before one of the following:
•
a judge or district judge;
•
a justice of the peace;
•
an officer of a court appointed by the judge for that purpose;
•
a commissioner for oaths or any person authorised to take affidavits under
the Commissioners for Oaths Acts 1889 and 1891.
An affidavit has been increasingly seen to be a document of a bygone age, particularly following the advent of the Civil Procedure Rules. In practical terms, it meant that a person wishing to swear an affidavit must first identify and locate one of the above persons, then attend before them in person in order to be sworn to it.
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This not only inconveniences parties and often puts them to expense, but also results in a delay in progressing matters. One innovation of the CPR is rule 22 which introduced the statement of truth which must be made if a party wishes to rely on any matter as evidence. This is a statement made by a party which asserts the truth as to the contents of his or her evidence (be it in an application or witness statement). The clear benefit of statements of truth over affidavits is their simplicity in procedure and consequential reduction in delay. Statements of truth have now been adopted in the FPR 2010 (albeit to a lesser extent than proposed in the consultation process). Again, this is a positive development. It removes the need for a document to be formally sworn, but without compromising the importance that the court places on verifying the truth of the evidence given. A statement of truth must be signed by the party or their legal representative and a statement of truth verifying a witness statement must be signed by the witness. The rules also provide, as with the CPR, that evidence submitted without such a statement of truth is inadmissible and that the court can order the verification of such evidence by way of the endorsement of such a statement of truth on it.
2.3 Financial proceedings 2.3.1 The Financial Remedy Procedure The emphasis within the financial remedy proceedings is on the early full and frank disclosure of the parties’ respective financial positions and settlement. Proceedings for what were previously known as ‘ancillary relief’ are now no longer ‘ancillary’ to the divorce or dissolution proceedings to which they relate. The proceedings for divorce and a financial order are now separate and distinct entities. An application will now commence all proceedings rather than the old ‘notice of intention to proceed with an application’. Accordingly, such proceedings are now known as ‘proceedings for a financial order’ and the term ‘financial remedy’ applies to all such related proceedings. The procedure also now covers a wider range of financial proceedings rather than just divorce or dissolution. In particular, the procedure for a financial order now applies to the following proceedings: 33
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•
Applications under MCA 1973, s.27 or the Civil Partnership Act 2004,
Sched.5, Part 9 (failure to maintain).
•
Applications under the Matrimonial and Family Proceedings Act 1984,
Part III or the Civil Partnership Act 2004, Sched.7 (financial provision
following overseas divorce/dissolution).
Applications under MCA 1973, s.35 or the Civil Partnership Act 2004,
•
Sched.5, para.69 (alteration of maintenance agreement by court during
lifetime of parties).
Applications under CA 1989, Sched.1.
•
Having said that, cases proceeding under the Trusts of Land and Appointment of Trustees Act 1996 and the Inheritance (Provision for Family and Dependants) Act 1975 fall outside the scope of the rules as they are not classified as ‘Family Proceedings’ as defined by S 32 of the Matrimonial and Family Proceedings Act 1984 and remain to be dealt with under the CPR 1998 as opposed to the FPR 2010. Other financial applications which do not involve such a generous ambit of discretion in determining their outcome will be dealt with using a procedure similar to that prescribed by Part 8 of the CPR, such as applications under the Married Women’s Property Act 1882, s.17 and MCA 1973, s.36 (alteration of agreements by court after the death of one party). The Pensions Act 2004 introduced the Pension Protection Fund (PPF) which is a compensation scheme for those whose occupational pension schemes cannot afford to cover liabilities due to an ‘insolvency event’. FPR 2010, Part 9, Chapter 8 refines the procedure in relation to pension sharing and attachment orders having regard to the PPF. Chapter 9 of Part 9 goes on to introduce a procedure for applications for pension compensation sharing and attachment orders. The court also now has the power in any financial remedy proceedings to direct that a child be made a party and be separately represented. (FPR 9.11(2)) Financial undertakings are also strengthened in so far as their enforcement are concerned (PD 33A)
2.3.2 Making an application for a financial order Section 28(3) of MCA 1973 prevents a party to the marriage, who has remarried, from applying for a financial provision order or a property adjustment order. The former rules provided for an application to be made either in the petition itself
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or answer or in Form A (FPR 1991, rule 2.53) which thus provided an important form of protection to a party to divorce or dissolution proceedings who might subsequently remarry or enter into a civil partnership and was thus a remedy routinely pleaded in the prayer. The intention of the new rules was to separate matrimonial and civil partnership proceedings from their related financial proceedings, the application for a financial order remaining wholly separate from the divorce or civil partnership application. At consultation stage it was therefore proposed not to include an application for a financial order within the application for a matrimonial or civil partnership order. This would of provided a real trap for the unwary, as a person who did not apply separately for a financial order before remarrying or entering into a civil partnership would lose their entitlement to apply for a financial order in the future, which would undoubtedly be a ground for a possible claim in negligence against their legal adviser. As a safeguard, it was proposed that the new application form for a divorce, nullity or dissolution order would contain a prominent warning of the consequences of remarriage on a party’s future right to apply for a financial order, although as a further precaution, one would have been well advised to amend any standard letters accordingly when sending such applications out to clients. One further upshot of this would have been the fact that parties would quite possibly be forced to issue applications for a financial order sooner than they might have normally anticipated if a remarriage or civil partnership was on the cards or in the event that they might wish to protect their claim for backdated periodical payments. However, a rethink took place prior to final implementation of the rules. The new Form D8 therefore still contains the old style ‘prayer’ in relation to financial orders and thus it appears that the protection provided by the previous rules remains.
2.4 Children proceedings 2.4.1 Protocol for Judicial Case Management in Public Law Children Act cases and Private Law Programme The Private Law Programme sets the guideline for a First Dispute Resolution Hearing (FDRH) to take place within four to six weeks with the aim of improving the resolution of private law family cases in a timely and effective manner. This has now been superseded by the Child Arrangements Programme 2014.
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The Protocol for Judicial Case Management in Public Law Children Act cases (‘Public Law Protocol’) set a guideline of 40 weeks for the conclusion of care cases (subsequently replaced by the Public Law Outline as from 1 April 2008 and now superseded by the new 26 week timetable (Pilot PD 12A; Section 32(1) (a) (ii) Children Act 1989)) and subsequently PD 12A) With the aim of reducing the plethora of protocols and guidance to produce one set of coherent rules and guidance by way of practice directions in accordance with their CPR equivalent, the FPR 2010 in respect of children proceedings incorporate both sets of documents. A further aim of the rules is to strike a balance between the necessary flexibility required for individual cases and the underlying timetable for their speedier disposal through:
•
the fixing of the final hearing at any point in the proceedings; and
•
the varying of the timetable at any hearing.
This is achieved by robust case management powers similar to those contained in the CPR Parts 1, 3 and 29 which will apply to both private and public law Children Act cases. Pivotal to this aim is the usage of:
•
Case Management Hearings and First Hearing Dispute Resolution
Appointments (the objective being to consider case management
directions and timetables).
Issue Resolution Hearings and Dispute Resolution Appointments (the
•
objective being to identify and narrow the issues and ensure an effective
final hearing).
•
Schedule of issues (a composite schedule of issues produced by the
advocates at the end of an advocates’ meeting prior to a Case
Management Hearing or IRH which should be agreed as far as possible
and, where not agreed, should set out the parties’ differing positions).
2.4.2 Forms for applications under the Children Act 1989 A wide range of changes to the existing forms was required to support the FPR 2010. The new application forms which therefore accompany the rules mirror their style and content on those of the Adoption and Children Act 2002. Not only does this achieve consistency, it also provides a more user-friendly style and simplification of language used.
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Where possible, provision for more direct questions and ‘tick box’ responses are provided paving the way for online completion thus reducing the need to enter ‘free text’. There are now also separate forms for different Children Act applications, e.g. one separate form for care and supervision applications. The new application forms also contain a much more comprehensive set of guidance notes and a list of documents that need to be attached, similar to that of Form E in applications for a financial order. Due to the increasing importance attached by the court to the mediation process (see FPR 2010, Part 3) and the stated intention to place privately funded and unrepresented applicants in a similar position to publicly funded applicants undergoing what was previously known as a Community Legal Service funding code referral, the forms include questions about the use of mediation before the court process is commenced. Again, further questions are raised as to information on domestic violence in light of current thinking and the ongoing concerns on its under-reporting and consequential effects on the victim and children.
2.5 Family proceedings in “magistrates’ courts” 2.5.1 Aligning rules governing practice and procedure in the “magistrates’ courts” with those of the High Court and county courts The aim of the FPR 2010 was to align the rules across all jurisdictions wherever possible in order to achieve both simplicity and the ultimate aim of a single family court. However, notwithstanding this sentiment much of the magistrates’ court procedure was defined by statute (Magistrates’ Courts Act 1980, ss.53–64) which the new rules could not override or ignore. In addition there was also an existing procedural code which was set out in the Magistrates’ Courts Rules 1981. For example, proceedings under the enactments listed in the Magistrates’ Courts Act 1980, s.65 were defined as ‘family proceedings’. This definition however did not include enforcement proceedings or proceedings for variation of periodical payments registered in the magistrates’ court and thus such applications were not provided for in the rules as they lay outside the Rules Committee’s terms of reference; accordingly, nothing in the FPR 2010 could apply to proceedings which were not formally defined as ‘family proceedings’ within the meaning of the Magistrates’ Courts Act 1980, s.65. 37
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This was remedied by the Family Procedure (Modification of Enactments) Order 2011 which provides for the modification and amendment of primary and secondary legislation in relation to various provisions made within the Family Procedure Rules and the Magistrates’ Courts (Enforcement or Variation of Orders Made in Family Proceedings and Miscellaneous Provisions) Rules 2011 No. 1329 (see below) (Note the effect of the Crime and Courts Act 2013 and The Family Procedure (Amendment No. 3) Rules 2013 (2013 No. 3204) in relation to the creation of the single Family Court which now replaces the County Court and Magistrates Court)
2.5.2 Single lay justice The rules now provide that certain functions of the court in relation to proceedings in relation to the Children Act 1989, the Family Law Act 1996, the Adoption and Children Act 2002 the Childcare Act 2006 proceeding may be performed by a single lay justice, provided he or she is a member of the family panel thus maximising the usage of the court’s resources (FPR 2010, rule 2.6(1) and PD 2A). However, a single lay justice cannot make a decision at the final hearing of an application for a substantive order. The Justices’ Clerks and Assistants Rules 2014 authorise justices’ clerks and assistants to justices’ clerks to carry out certain functions of the new single family court. They require justices’ clerks and assistants to justices’ clerks to refer matters back to the court where it would be inappropriate to carry out an authorised function as provided for in the rules.
2.5.3 Financial proceedings As part of the aim of the rules to achieve unification of the court process, another welcome development is the application of the ancillary relief type procedure to certain types of financial proceedings in what was then the magistrates’ court. However, given the fact that such financial proceedings will not present quite the same complexities as their county court counterparts and thus not merit the same detailed disclosure, a simplified version of the Financial Remedy procedure (detailed below) was applied as well as a separate and distinct Financial Statement (Form E2): 1.
Applicant files application (Form A2).
2.
Court issues application with notice of first appointment and date for exchange
of Financial Statement.
3.
Applicant serves notice of first appointment on respondent.
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4.
Parties exchange Financial Statements (Form E2) on a date specified by
the court.
5.
The overriding objective will apply to the management of the case including
what (if any) further disclosure should be ordered.
6.
First appointment hearing – court decides whether further disclosure required
and the future management of the case to final hearing.
2.5.4 Procedural changes Power to order disclosure against a non-party CPR rule 31.17 provides for disclosure against a non-party as do rules 79 and 80 of the Family Procedure (Adoption) Rules 2005. FPR 1991, r 2.62(7) gave the court power to order a non-party to attend court to produce documents. The power of discovery against a third party was also made available in the magistrates’ court (FPR 2010, Part 21; Article 12 of the Family Procedure (Modification of Enactments) Order 2011) Costs Orders Article 10 of the Family Procedure (Modification of Enactments) Order 2011 amended the Magistrates Courts Act 1980 to make provision for costs to be awarded in all family proceedings aligning magistrates’ courts powers to award costs in family proceedings with the powers of the High Court and County Courts. Power to stay proceedings Previously, a ‘magistrates’ court’ did not generally have the power to stay proceedings, unlike that in the county court, which is a particularly useful mechanism within the civil jurisdiction. That was remedied by a general power to do so contained within the FPR 2010 (rule 4.1(3) (g)) and Article 6(a) and (b) of the Family Procedure (Modification of Enactments) Order 2011) Guidance issued to the Family Proceedings Court by the Justices’ Clerks Society in July 2011 anticipated that applications to stay would be made most often in cases when a decision had been made and there was an indication that an appeal was to be lodged against the decision. In such cases the appeal notice must be lodged, or an assurance given that it will be as quickly as possible and, in any event, within a period specified by the court. An indication must also be obtained as to the approximate timescale in which the
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appeal will be heard. Finally, consideration must be given to limiting the length of the stay until the case can be listed before the judge hearing the appeal so that on that occasion consideration can be given to extending the stay until the appeal is heard. Power to issue a witness summons Such power, previously available at county court level, was now also available in the magistrates’ court to a justice of the peace for all family proceedings. (Art 13 of the Family Procedure (Modification of Enactments) Order 2011) Transfer of Proceedings Article 38 of the Family Procedure (Modification of Enactments) Order 2011 made provision for the amendment of Article 15(1) of the Allocation and Transfer of Proceedings Order 2008 (S.I. 2008/2836) which deals with the transfer of proceedings from a magistrate’s court to a county court. Article 15(1) sets out the criteria the court must consider when considering a transfer. The amendment removed the reference to the exercise of the power to transfer where there is a real risk that a party to the proceedings may lack mental capacity within the meaning of the Mental Capacity Act 2005 as the FPR made specific provision for protected parties in relation to all three levels of court which subsisted at the time including the ‘magistrates court’ (Part 15). (Note the effect of the Crime and Courts Act 2013 and The Family Procedure (Amendment No. 3) Rules 2013 (2013 No. 3204) in relation to the creation of the single Family Court which replaces the County Court and Magistrates Court dispensing with the need to now transfer cases) Appointing, changing or removing a solicitor from the court record Apart from that as provided for under the Family Procedure (Adoption) Rules 2005, Part 18, there was previously no specific provision with regard to appointing, changing or removing solicitors from the court record at magistrates’ court level. This was remedied to provide a power similar to that contained in CPR Part 42 (change of solicitor) to all family proceedings courts. Authentication of documents Rule 9 of the Family Procedure (Adoption) Rules 2005, which provides for the authentication of documents by seal or stamp of the court, now also applies to all family proceedings, whatever level of court.
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Providing for evidence by way of affidavit In line with the policy of harmonisation of the rules for family proceedings with the CPR, the use of affidavits in family proceedings has been curtailed, preference being given to statements of truth. Provision of written reasons in the family proceedings courts Rule 21(5) of the Family Proceedings Courts (Children Act 1989) Rules 1991 and rule 12(5) of the Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991 required the justices’ clerk to record in writing, in consultation with the bench, the reasons for the court’s decision and any findings of fact before the court made an order or refused an application before it. Thus, no order could be made without there being a written record of the court’s reasons and findings of fact. For those who regularly practise in this field of law, this was perhaps the most annoying, inconvenient and often frustrating aspect of advocacy within the family proceedings court. Not only does one, after the conclusion of the case, have to wait for what often seems an indeterminate amount of time for the delivery of written reasons, but one also has to build into any time estimate given to the court, for the conduct of a contested hearing, provision for formulating and handing down such written judgment with reasons. Indeed, even in cases proceeding by consent, written reasons for making an order have to be given. Such was the disdain for these provisions that many advocates took the lead in writing out the court’s reasons for making the order sought themselves which were then handed to the magistrates to formally endorse a practice which has now been castigated in Re NL (A Child) (Appeal Interim Care Order: Facts and Reasons) [2014] EWHC 270 and which has resulted in revised Guidance for the provision of Justices reasons in uncontested cases issued by the Justices’ Clerks’ Society and Magistrates’ Association in March 2014 and which applies to both Public and Private Law Children proceedings. This is in sharp contrast to the position at county court and High Court level which provided for greater flexibility. At the higher levels of jurisdiction there was no duty to pre-record the reasons and findings in writing and judges (even deputies!) were able to deliver judgments orally at one and the same time as making the order.
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As a welcome compromise, therefore, the current procedure was adjusted to allow magistrates to announce their decision and to provide the parties with the order and a summary of the reasons for their decision and, thereafter, full written reasons to be given by the end of the court day or whenever practicable thus mitigating the previous regime and consequential delay and stress encountered. The Magistrates’ Courts (Enforcement or Variation of Orders Made in Family Proceedings and Miscellaneous Provisions) Rules 2011 No. 1329 These Rules, which came in force on the 18 June 2011, consolidated various existing provisions in the rules of court setting out the practice and procedure to be followed in ‘magistrates’ courts’ in certain proceedings, and applied the Family Procedure Rules 2010 to certain other magistrates’ courts proceedings in place of the existing rules. Their purpose was to fill the gap left by the FPRs which did not apply to enforcement and variation proceedings in the magistrates’ courts since they are not technically family proceedings. The rules consolidated existing provisions and apply the FPRs to other magistrates’ courts procedures such as variation of certain maintenance orders, enforcement of contact orders and (with modifications) enforcement of occupation and non-molestation orders. The rules also took account of the Maintenance Regulation. Part 2 made general case management provisions applicable to certain rules and also made provision in respect of powers of the court which were exercisable by a single justice of the peace or by a justices’ clerk. Part 3 made provision in respect of the practice and procedure to be followed in proceedings for the registration and enforcement of a maintenance order under the Maintenance Orders Act 1950. Part 4 made similar provision in respect of the Maintenance Orders Act 1958. Chapter 1 of Part 5 applied the FPR to proceedings for the variation of a maintenance order to which Part 1 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (“the 1972 Act”) applies. Chapter 2 of Part 5 made provision in respect of applications under Part 2 of the 1972 Act. Part 6 applied the FPR, with modifications, to applications for variation of a maintenance order under section 20 of the Domestic Proceedings and Magistrates’ Courts Act 1978 or Schedule 6 to the Civil Partnership Act 2004. Part 7 applied the FPR, with modifications, to applications for variation of a maintenance order to which the Civil Jurisdiction and Judgments Act 1982, the
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Lugano Convention, the 1988 Convention or the Maintenance Regulation applies. Part 8 made provision for the practice and procedure to be followed in certain applications to which the Family Law Act 1986 applies. Part 9 applied the FPR, with modifications, to applications for the enforcement of contact orders under the Children Act 1989 (“the 1989 Act”) and to applications to vary contribution orders under the 1989 Act. Provision was also made in respect of the enforcement of residence orders and special guardianship orders made under the 1989 Act. Part 10 set out the practice and procedure to be followed where a magistrates’ court gave a direction under section 447 of the Education Act 1996 to a local authority to apply for an education supervision order under the 1989 Act. Part 11 applied the FPR, with modifications, to applications to enforce orders made under Part 4 of the Family Law Act 1996 (occupation orders and non-molestation orders). Part 12 amended the Magistrates’ Courts Rules 1981 such that the 1981 Rules were made subject to these Rules and that the 1981 Rules were amended to reflect the application of the “Maintenance Regulation” (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations) in relation to the enforcement of maintenance orders from the European Union.
2.6 Appeals 2.6.1 Process of appeal The rules regulating appeals from family proceedings courts were often complex and confusing having developed piecemeal over many years through a variety of different statutes such as CA 1989, s.94 and the Domestic Proceedings and Magistrates’ Courts Act 1978 (DPMCA 1978), s.29 and necessitated commencement in a variety of ways such as:
•
case stated (such application to be made within 21 days of the decision
(Magistrates’ Courts Act 1980, s.111(2)));
notice of appeal (pursuant to CA 1989, s.94, such notice to be filed within
•
14 days (FPR 1991, rule 4.22(3)));
notice of motion (under DPMCA 1978, s.29, such notice to be lodged
•
within six weeks of the decision (FPR 1991, rule 8.2(2))).
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The FPR 2010 therefore provided for a single process of appeal from decisions of a magistrates’ court in family proceedings by way of a single form of appeal notice. This, of course, is consistent with making rules which are simple and easy to follow, which was more than that could be said for their predecessors. Again, as part of the process of harmonising the Family Proceedings Rules with the provisions of the Civil Procedure Rules, CPR Part 52 has been adjusted to apply to all family proceedings, as has been the case with Part 19 of the Family Procedure (Adoption) Rules 2005, and appeals from decisions of a family proceedings court by way of case stated have accordingly been abolished.
2.6.2 Route of appeal Not only has the mode of appeal changed but so has the route. Previously, all appeals from decisions in the family proceedings court had to be made to a High Court judge (no doubt much to their annoyance given the sheer volume of work done at family proceedings court level). The rules now provide that all such appeals will be dealt with at family court level by a circuit judge. In other words, we now have a tier-based approach, as with the civil jurisdiction, with any final decision appealed to a court one level up from the decision being appealed against being consistent with the objective of now having a single family court.
3
The rules explained
3.1 Introduction The FPR 2010 is contained in 36 Parts covering different areas of procedure and different types of proceedings and to a large extent are modelled on the CPR subject to certain modifications. They are a self-contained code of rules, practice directions and forms, where possible and practicable, applying across all tiers of court. Much of the detail of the procedure to be followed is contained in practice directions supplementing the different parts of the rules.
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3.2 Part 1: Overriding objective The overriding objective derives from CPR Part 1. Just like the CPR, the FPR 2010 set out at their very inception the overriding objective and guiding philosophy of the new rules so as to provide a ‘compass’ to guide courts and litigants and legal advisers as to the general course of the rules. Perhaps the first thing to emphasise is FPR 2010, rule 1.1 which permeates the whole ethos of the FPR and is known as the ‘overriding objective’. This repeats the overriding objective in ancillary relief proceedings which was originally contained in rule 2.51D of the FPR 1991. The objective is now extended to all family litigation. The importance of this is also set out in FPR 2010, rule 1.3, which states that not only are the parties required to assist the court in furthering the ‘overriding objective’ but, through rule 1.4, the court itself is required to further the overriding objective by actively managing cases (‘active case management’). Furthermore, the court is required to give effect to the overriding objective when exercising any of its powers under the FPR 2010 or when interpreting any of the rules contained within it (r 1.2) Accordingly, although there is a duty on the Court to further the overriding objective through active case management, there is no such corresponding duty on the parties to do so, merely an obligation to help the court in achieving its stated aim.
3.2.1 What is the overriding objective? The overriding objective requires all cases to be dealt with ‘justly, having regard to any welfare issues’ (FPR 2010, rule 1.1(1)). It is important to observe that welfare issues (although not defined in the rules) are an additional requirement of the FPR 2010 as compared with the CPR. Given the nature of family litigation which, often as it does, involves the issue of children in respect of both children proceedings and financial applications, this is clearly an important and intentional additional gloss. The reference to welfare is also not limited to that of children and can include adults, particularly if they are vulnerable or otherwise lack capacity, as well as any other person involved in the proceedings or who may be affected by the court’s decision.
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Dealing with a case justly includes the following:
•
Ensuring that it is dealt with expeditiously and fairly.
•
Dealing with the case in ways which are proportionate to the:
–
nature of the case;
–
importance of the case;
–
complexity of the issues.
This can be particularly relevant in financial cases, for example in B v B (2013) EWHC 1232 Coleridge J said this:“Although the parties are to be applauded for achieving agreement on many of the major issues…..a mild rebuke is justified over their approach to the lesser assets………….proportionality is the name of the game…………Assets falling in this category should be bundled up together and an overall value for them all agreed. If not the court is itself likely to apply that system in a broad, even rough and ready, way”
•
Ensuring that the parties are on equal footing (note the likely readjustment
of any perceived imbalance where there is a litigant in person, in
particular the preparation of a court bundle, Case Summary, Chronology
or draft order by a represented party even if the litigant is in fact the
applicant).
•
Saving expense (note this interrelates also with the issue of proportionality
particularly when dealing with the appointment of experts).
Allotting to it an appropriate share of the court’s resources whilst taking
•
into account the need to allot resources to other cases (again, the
proportionality issue). Active case management includes the following:
•
Setting timetables or otherwise controlling the progress of the case. (This dovetails with the objective of ensuring cases are dealt with expeditiously)
Being the very first item in the list suggests a clear message that active case management means sticking to the timetable. A procedural step which might lead to a departure from the timetable may therefore not be in furtherance of the overriding objective.
•
Identifying at an early stage:
–
the issues; and
–
who should be a party to the proceedings (particularly important
when dealing with the question of adding a second respondent in
divorce proceedings or the issue of joinder in a financial application)
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The case of Goldstone v Goldstone (2011) EWCA Civ 39 highlighted the fact that the FPR 2010 in their original form omitted to make any provision for joinder although, it was mooted, this could be circumvented by reference to FPR 4.1(3) (o) and, that: ‘since the 2010 rules say nothing about the principles on which joinder of third parties…… should be exercised, it may be that courts will have recourse by analogy to the principles contained in CPR 19.2 ………………... The final resolution of that issue must however await a decision on the point.”
The guiding principle with regards to this issue will be the desirability of equipping one court with the means of deciding all relevant connected issues before it within one set of proceedings so as to avoid the multiplicity of different sets of potentially conflicting proceedings in accordance with the courts extensive case management powers under r 4.1, the over-riding objective in r 1.1 and the courts duty to actively manage cases under r 1.4(1). This apparent lacuna has however now been rectified by the insertion of rule 9.26B by the Family Procedure (Amendment) Rules 2012 at least in so far as financial remedy proceedings are concerned. However, there is still no provision for adding parties in children proceedings. For a decision on the issue of joinder post FPR 2010 reference can be had to the case of Fisher Meredith LLP v JH & PH (2012) EWHC 408 • Deciding promptly which issues need full investigation at trial and which
do not and the appropriate procedure to be followed. (This clearly points
the way to robust case management, particularly given the objective of
dealing with cases in a manner which is proportionate as set out
previously, bearing in mind court resources.)
•
Deciding the order in which issues are to be resolved.
•
Controlling the use of expert evidence.
•
Encouraging the parties to use a non-court dispute resolution procedure
if the court considers that appropriate and facilitating the use of such
procedure (notably mediation, conciliation, the collaborative law
practice as well as Arbitration (AL v MT (2013) EWHC 100). This of course
interrelates with Part 3. Note however the courts duty is to encourage
ADR not to compel it (Halsey v Milton Keynes General NHS Trust (2004)
EWCA Civ 576)
Helping the parties to settle the whole or part of the case. (Emphasising
•
the proactive role of judges and possibly the adoption at more hearings
of a family dispute resolution (FDR) style approach where appropriate as
well as adjourning for the purposes of alternative dispute resolution (ADR))
Encouraging the parties to co-operate with each other in the conduct
•
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of the proceedings (each party clearly owes a duty to the court in
ensuring that its orders are complied with and that the case is progressed)
•
Considering whether the likely benefits of taking a particular step justify the
cost of taking it. (A cost/benefits analysis - especially relevant when
considering more particularly, but not exclusively, the obtaining of expert
evidence)
•
Dealing with as many aspects of the case as possible on the same
occasion. (Emphasising the importance of utilising the court’s resources
and a focused approach to the case to achieve an expeditious
conclusion within a predefined timeframe.)
•
Dealing with the case without the parties needing to attend at court.
•
Making use of technology (e.g. the giving of evidence by video link and
other electronic means (FPR 2010, rule 22.3)).
The latter two points are increasingly important in the civil jurisdiction as many hearings take place by way of telephone hearings without requiring the formal attendance of the parties or, indeed, within the precincts of the court, thus saving substantial costs. It is debatable whether or not this is extensively used in children and financial proceedings where at present the parties’ attendance is required, but as far as an FDA is concerned this may be seen as a welcome option in an appropriate case.
•
Giving directions to ensure that the trial of a case proceeds quickly and
efficiently. (Again this links in with the objective of attempting to deal
with as many issues as possible at any hearing listed, irrespective of its
original purpose.)
3.3 Part 2: Interpretation This Part contains interpretation of terms used throughout the rules. The main definitions include the following: • Non-Court dispute resolution – methods of resolving a dispute, including
mediation, other than through the normal court process. The term
includes both the process of collaborative law and arbitration.
• Application form – a document in which the applicant states his or her
intention to seek an order other than in accordance with the Part 18
procedure. • Application notice – an application in accordance with the Part 18 procedure.
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• Children’s Guardian –refers not only to a CAFCASS officer appointed
under rule 16.3(1) in specified proceedings but also a person appointed under rule 16.4.
• Civil restraint order – an order restraining a party from making:
(a) any further applications in current proceedings (a limited civil
restraint order);
(b) certain applications at specified courts (an extended civil restraint
order); or
(c) any applications in specified courts (a general civil restraint order).
•
Financial order – this covers an avoidance of disposition order, orders
in respect of payment for legal services, maintenance pending suit and
orders for periodical payments, lump sum, property adjustment, pension
sharing and variation and broadly replace the previous term of
‘ancillary relief’. • Financial remedy – not only does this cover a financial order (see above)
but it includes a whole raft of financial provisions contained in a multitude of legislation including CA 1989, Sched.1.
• Judge – Extensively defined depending on whether proceeding in the
High Court or family court.
• Lay Justice – A justice of the peace who is not a District Judge (Magistrates Courts) • Litigation Friend – A person acting for a protected party or a Child under
Parts 15 and 16.
• Matrimonial order – a decree of divorce, a decree of nullity or a decree of judicial separation. • Order – the term also now encompasses ‘directions of the court’ although
having said that there is clearly a semantic difference between ordering
something and directing it.
Worthy of historical mention only is the fact that enforcement provisions in relation to non molestation and occupation orders under Part IV FLA 1996 and variation and enforcement of periodical payments orders in the Magistrates Court originally fell outside the definition of ‘family proceedings’ by virtue of the old r 2.1(2) (a) and therefore remained to be dealt with under the previous rules. This was rectified by the Family Procedure (Modification of Enactments) Order 2011 and the Magistrates’ Courts (Enforcement or Variation of Orders Made in Family Proceedings and Miscellaneous Provisions) Rules 2011 No. 1329. (See 2.5.1). This has now been further amended to reflect the fact that pursuant to the single unified family Court the rules now apply to all proceedings in the family court and High Court (rule 2.1)
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In reflection of the fact that the FPR and their civil counterparts are inextricably linked Section 76 of the Courts Act 2003 permits the FPR to be made by applying other rules namely their Civil counterparts (the Civil Procedure Rules) together with any evolutionary amendments (see rule 2.3(3)) In respect of the procedure for applications for committals to custody for contempt the FPR does this by applying the Rules of the Supreme Court (RSC) Order 52 and County Court Rules (CCR) Order 29 as preserved in the CPR (in Schedules 1 and 2 to the CPR). The CPR as from 1 October 2012 have been amended to remove RSC Order 52 and CCR Order 29 from the Schedules replacing them with consolidated and modernised provisions by virtue of a new CPR Part 81. FPR rule 2.3(3) provides that where the FPR apply the CPR, they apply them “as amended from time to time” and so if nothing were done, the CPR changes on the procedure for committals would be applied automatically in the FPR too. The Family Procedure Rule Committee (FPRC) however at the time the amendment were made did not have the opportunity to consider the amended CPR provisions and whether they should be applied with or without modification within the family proceedings context and concluded that the existing RSC O.52 and CCR O.29 should continue to be applied whilst the appropriate amendments are considered. Rules 3 of The Family Procedure (Amendment No. 3) Rules 2012 therefore provide for an exception to the general position by adding a new rule (r 2.3(4)) so that in relation to the procedure for committals, the CPR are applied not as amended from time to time but as they stand on the day before the CPR amendments come into effect, namely 30 September 2012. This had the effect of preserving the existing procedural provisions for committals in family proceedings until the FPRC had decided what changes should be made. As this has now been done pursuant to a new Part 37 rule 2.3(4) has now been removed. Rule 2.6 (as supplemented by PD 2A) provides that the functions of the court may be performed by a single lay justice (who must be a member of the family panel) pursuant to the Children Act 1989, Family Law Act 1996, Adoption and Children Act 2002 and the Childcare Act 2006. This also includes certain applications made without notice for which there is a requirement for permission to be obtained first which will usually be dealt with by the justices’ clerk. It also includes the power to transfer proceedings as well as the making of an interim care order.
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In so far as the latter order is concerned the conditions set out in rule 2.6(2) must however be satisfied, namely that the order sought follows on from a preceding order (which must be identical in its terms) and for which there is a written request for such an order supported either with the signed written consent of all the parties or the signed written consent of at least one of them together with that of the children’s guardian and with no indication of opposition from the other parties. Accordingly, although a single justice is not empowered to grant an initial interim care order they can deal with their subsequent consensual routine renewals. Furthermore, unless specifically provided for in Rule 2.6, a single lay justice cannot make a decision at the final hearing of an application for a substantive order e.g. a residence order on notice, placement order, adoption order or final care order. Rule 2.7 provides that where a single lay justice considers, for whatever reason, that it is inappropriate to perform such function then they must the matter to the family court to presumably be dealt with by a Judge. Rule 2.8 gives the court ultimate discretion as to where any court hearing (or indeed part thereof) should take place which again dovetails with the court’s duty of active case management and more particularly the overriding objective having regard to any welfare issues for example that of a child or protected party who may wish to give evidence at a more suitable venue. Of particular note also is rule 2.10 which provides that when drafting directions and orders advocates must express dates for compliance (wherever practicable) by reference to calendar dates and times (“by 4:00 pm on (date)” ) as opposed to “within X days”.
3.4 Part 3: Non-Court dispute resolution Section 10 of the Children and Families Act 2014 provides that, before making a “relevant family application”, a person must attend a family mediation information and assessment meeting (MIAM) Thus the requirement to attend a Mediation Information and Assessment Meeting (MIAM) before making an application has now been strengthened and given statutory force. A “relevant family application” includes private law proceedings relating to children specified in PD3A paragraph 12 and proceedings for financial remedies specified in PD3A in paragraph 13.
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The requirement does not apply when lodging a consent order application or in respect of enforcement proceedings or, in private law proceedings, where there are proceedings for an emergency protection order, a care order or a supervision order. This part complements that objective and more particularly the courts duty of encouraging (but not compelling) the parties to use alternative forms of dispute resolution (now called non-court dispute resolution (‘NCDR’) as opposed to the civil equivalent of Alternative Dispute Resolution (ADR), if it considers it appropriate, and to facilitate the usage of such procedure (r 1.4(2) (e)) As part of the continual drive to encourage and facilitate mediation as a way of resolving disputes amicably, thus saving costs and recourse to the courts, FPR 2010 Part 3 sets out the court’s powers in dealing with ‘NCDR’ (including mediation). This was backed up by the previous practice direction, PD 3A which by way of introduction stated that:
There is a general acknowledgement that an adversarial court process is not always best
suited to the resolution of family disputes, particularly private law disputes between parents
relating to children, with such disputes often best resolved through discussion and agreement
where that can be managed safely and appropriately.
Parties will therefore be expected to explore the scope for resolving their dispute through
mediation before embarking on the court process. (PD
… all potential applicants for a court order in relevant family proceedings will be expected,
before making their application, to have followed the steps set out in the Protocol.
(PD 3A, para.4.1)
(PD 3A, para.3.1)
3A, para.3.5)
The primary purpose of Part 3 is to encourage and facilitate the use of non-court dispute resolution, to set out good practice to be followed by anyone considering bringing an application before the Court and to ensure as far as possible that all parties have considered mediation or other alternative means of resolving disputes. One can expect therefore that, from the outset, the judge will enquire as to whether or not NCDR/Mediation has been attempted and, if not, why not? There is an expectation on parties to do so where appropriate. Part 3 is broken down into 3 chapters: Chapter 1 (rule 3.1) deals with the interpretation of various expressions and terminologies used within Part 3. Chapter 2 (rules 3.2 – 3.4) sets out the courts duties and powers in relation to noncourt dispute resolution.
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Chapter 3 (rules 3.5 – 3.10) is dedicated to MIAM’s and is supplemented by what is a new and revised PD 3A which sets out good practice to be followed by prospective respondents (who are also expected to attend a MIAM) and is written with the clear aim of the litigant in person in mind. In essence, FPR 2010, rule 3.3 sets out the objective that the court must consider, at every stage in the proceedings, whether NCDR is an appropriate mechanism which should be utilised in attempting to resolve matters taking into account the factors set out in rule 3.3(2). Those factors include previous attendance at a MIAM (or a valid exemption from the same) and whether or not the parties have attempted mediation or another from of NCDR which suggests that this includes not only collaborative law but negotiations (with or without Solicitors) including ‘round table meetings’. If it is felt that NCDR is appropriate rule 3.3 provides that the court can direct that the proceedings (or a hearing) be adjourned for such period or periods as is felt appropriate to enable the parties to obtain information and advice in respect of NCDR and, indeed, for NCDR to take place. In a letter to the Judiciary dated 4th December 2012 Mr Justice Holman said this:“Judges and Magistrates conducting the first hearing in the types of private law financial remedy and children proceedings to which the protocol applies should, accordingly, as a matter of routine, expect to see a completed FM1 from the applicant on the Court file, and should also enquire of the Respondent his or her willingness to consider mediation…………Where a court is faced with no completed FM1 form the parties should be asked whether mediation has been considered. If appropriate, the court can then adjourn proceedings for the parties to attend a MIAM. In contact proceedings for an order under section 8 of the Children Act 1989 the court has the additional option to direct one, or both, parties to attend a MIAM by making a contact activity direction or condition……. With the prospect of more litigants in person from April 2013 it will be very important for judges and magistrates to take a lead in encouraging and promoting out of court settlement, wherever it is appropriate and safe to do so, through consistent application of the protocol. We need to send out a strong message that family mediation is something to be given serious consideration at the earliest possible stage, and this needs to be reinforced by routine enquiries about compliance with the protocol – both at the point of issuing proceedings and at the first hearing.”
Having said that however, it has to be recognised that the Court’s role is limited to encouraging the parties to mediate; it cannot compel parties to undertake NCDR in contrast to that under the CPR (seer.3.3 (1) (b) whereby the court can adjourn proceedings for a specified period to allow NCDR to take place but only if the parties agree: Mann v Mann (2014) EWHC 5371)
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Note that this also contrasts with the power of the civil court to order a general ‘stay’ so that it is likely that such adjournment will always be to a fixed date as opposed to an adjournment generally (but see the court’s general case management powers to order a stay at 3.5 below) Such directions can be given either by invitation of the parties themselves or of the court’s own initiative. It is worth noting that the power of the court to direct an adjournment for the purpose of NCDR of its own initiative (rule 3.1(2)) could mean, in an appropriate case, adjourning proceedings without the parties being present, as a paper exercise and without hearing representations, if the court feels that insufficient attempts have been made to negotiate matters or that other options have not been properly explored before instigating such proceedings. If that is the case then note the important provisions provided by FPR 2010, rules 4.1(7) and 4.3(2)–(6). Where such an adjournment is directed, the court will also set out the corresponding duty of the parties to keep the court informed of the outcome of such NCDR referral or process (FPR 3.1(3)) It is to be expected that, as with the CPR, any order adjourning the proceedings for the purposes of NCDR will provide a direction that by a specified date the applicant must advise the court as to whether or not NCDR has been successful and, if so, whether a consent order can be filed, or whether a further adjournment is required due to ongoing mediation or, in the event that NCDR has not been successful, what further directions are required, in order to bring about an expedited resolution of the proceedings by way of a hearing. In the event that such information is not provided again, as with the civil jurisdiction, the court can give such directions as it considers appropriate in respect of the future management of the case (FPR 3.1(4)) However, if the adjournment is to a fixed date one would imagine that such directions would be given on that occasion rather than of the court’s own initiative. Having said that, in the Civil case of Wright v Michael Wright Supplies Ltd (2013) EWCA Civ 234 Sir Alan Ward posed the question when dealing with the Courts general power to order a stay whether it allows: “the Court of its own initiative at any time...to direct a stay for mediation to be attempted with the warning of costs consequences...for unreasonably refusing to agree to ADR? Is a stay really “an unacceptable obstruction” to the parties’ right of access to the Court...”
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However, Section 10(1) of the Children and Families Act 2014 creates a statutory requirement that before making a relevant family application in certain specified family proceedings, a prospective applicant must attend a family mediation information and assessment meeting unless exempt. This requirement is now contained within Part 3 (rules 3.5 – 3.10) and the accompanying Practice Direction Practice Direction 3A which supplements Part 3 provides useful information (amongst other things) about:
•
What proceedings are ‘private law proceedings relating to children’ (for
example, s 8 orders, parental responsibility orders, orders appointing a
children’s guardian, an order giving permission to change a child’s
surname or remove a child from the UK, a special guardianship order and
an order varying or discharging such an order).
What proceedings are ‘proceedings for a financial remedy’ (for
•
example, proceedings for MPS, periodical payments, property
adjustment orders, variation orders, pension sharing orders or pension
compensation sharing orders, Sch 1 proceedings, neglect to maintain
proceedings, alteration of maintenance agreements proceedings, failure
to maintain proceedings and applications under MCA 1973, s 10(2) / CPA
2004, s 48(2)).
What evidence can be used for the domestic violence MIAM exemption
•
and the bankruptcy MIAM exemption.
•
How to find an authorised family mediator.
•
How to fund a MIAM (Legal Aid is available for MIAMs).
In essence anyone contemplating making an application for private law proceedings relating to children or for a financial remedy is required to attend (either together with, or separately from, the respondent) a Mediation Information and Assessment Meeting (MIAM) so as to explore with a mediator whether or not mediation or other forms of NCDR might be an appropriate forum in which to resolve their dispute before embarking on court proceedings . It is also expected (but not a requirement), unless exceptional circumstances apply, that the Respondent too must have attended a MIAM if invited to do so. Although there is no compulsion on the Respondent to attend an unreasonable failure to respond to such an invite might well be revisited in costs later on down the line.
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Such a meeting may be conducted jointly or separately (PD 3A Para 32) and must be undertaken within 15 days of being contacted. The Mediator will need to consider with the parties whether public funding may be available as any charge made for the Mediation Information and Assessment Meeting will be the responsibility of the parties attending in accordance with any agreement made with the Mediator (PD 3A Para 29 - 30) Furthermore, a Family Mediation Information and Assessment Form (Form FM1) will need to be completed and filed together with ‘a relevant family’ application to confirm that such a meeting has taken place or, if not, why not (e.g. an exemption applies (be it either a MIAM exemption (rule 3.8(1)) or a Mediators exemption (rule 3.8(2)), mediation is not suitable or mediation was attempted but failed (lack of engagement from the Respondent(s)) (rule 3.7). Where a MIAM exemption is claimed supporting evidence of this must be brought to the first hearing as it is a requirement that the Court will enquire into such evidence in order to determine whether it has been validly claimed. PD 3A sets out the requisite evidence which is required in relation to Domestic Violence (para 20) and in relation to bankruptcy (para 21) Note, Form C100, Form A, Form A1 and Form B1 have all been amended to include a MIAMS section and therefore there is no need to file a separate from FM1 in those circumstances. Form FM1 should continue to be used with forms C1 and C2 where the Private Law Children Act 1989 application relates to a relevant family application for statutory MIAM purposes. A Self-Represented Litigant, the legal representative, or an accredited family mediator trained to carry out a MIAM, must sign the relevant section(s) of the form. Note that in certain instances the Solicitor or Applicant themselves can self –certify the form, in other instances it must be done by the mediator themselves. The court has the power to adjourn proceedings in order that the above steps are undertaken (see above) Such an adjournment may be done of the courts own initiative, however, where it does so it must then go on to give the person affected by the order an opportunity to make representations and fix a timescale in which such representations must be made (r. 4.3(2)) Whilst attendance at a MIAM is now compulsory, unless an exemption applies,
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overall compliance with the spirit of the protocol and subsequent participation in mediation or other form of NCDR is not nor indeed is it a pre-condition on making an application, however, non-compliance may result in costs sanctions, particularly if the court is of the view that such refusal to mediate is unreasonable which of course applies equally to a respondents lack of engagement. Case law relevant to ADR (the civil law equivalent of NCDR) within the CPR might well prove instructive on this point: The question whether a party has acted unreasonably in refusing ADR must be determined having regard to all the circumstances of the particular case … in many cases no single factor will be decisive. (Halsey v. Milton Keynes [2004] 1 WLR 3002) Factors to be considered:
•
Nature of the case
•
Merits of the case
•
Cost of mediating and the delay that this might entail
•
Prospects of success at mediation (However parties cannot rely on their
own intransigence) Even the most contested of cases should not be ruled out of the mediation process:“...experience shows that it is often in those cases where the facts are most hotly disputed that ADR can be useful, because it focuses attention of the parties on the commercial reality of the litigation and the costs involved, rather than on the very uncertain question of which of them will ultimately be believed by the judge on the bare factual dispute.” (Hannan v Maxton (2010) 1 FLR 27)
In the civil case of Rolf v De Guerin (2011) EWCA Civ 78 Rix LJ held that the defendant’s refusal to mediate was unreasonable behaviour for the purposes of CPR 44(5): “As for wanting his day in court, that of course is a reason why the courts have been unwilling to compel parties to mediate rather than litigate: but it does not seem to me to be an adequate response to a proper judicial concern that parties should respond reasonably to offers to mediate or settle and that their conduct in this respect can be taken into account in awarding costs…The spurned offers to enter into settlement negotiations or mediation were unreasonable and ought to bear materially on the outcome of the court’s discretion...” Again in the civil case of Faidi v Elliot Corp (2012) EWCA Civ 287:“I wish enthusiastically to associate myself with the observations of my Lords on the desirability of mediation ...disputes... arouse deep passions and entrenched positions are taken as the parties stand
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upon their rights seemingly blissfully unaware or unconcerned that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.’
Furthermore, a refusal to attend a round-table meeting, for example, may also be met by a costs order (Jarrom v. Sellars [2007] EWHC 1366 (Ch), [2007] All ER (D) 202 (Apr)). It has also been held that where a party who agreed to mediation adopted an unreasonable stance during the mediation process then they too could be treated by the court as if they had unreasonably refused to mediate (Earl of Malmesbury v. Strutt & Parker (a partnership) [2008] EWHC 616 (QB)). Moreover as a general rule, silence in the face of an invitation to participate in ADR may itself be unreasonable, regardless of whether a refusal to engage in ADR might have been justified. Any difficulties or reasonable objection to an ADR proposal should be discussed, so that the parties can narrow their differences. (PGF II SA v OMFS Co 1 Ltd (2013) EWCA Civ 1288) It is also worth mentioning that attendance at a Mediation Assessment Meeting can be ordered as a contact activity pursuant to s 11A and 11C of the Children Act 1989. The exceptions to the requirement to attend a Mediation Information and Assessment Meeting are set out in detail in rule 3.8. The rules differentiate between a “MIAM exemption” and a “Mediators exemption” The MIAM exemption is set out in rule 3.8(1) These include such matters as: Domestic Violence (defined as “any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional)”) but only where there is evidence to that effect namely in the last 24 months as set out in PD 3A paragraph) Whilst the evidential list is substantial and mirrors that in respect of qualification for Legal Aid it does seem odd that in a domestic violence case, for example, where an applicant has fled or is fleeing the home and has yet to issue FLA 1996, Part IV proceedings (or has no need of doing so because he or she is safe elsewhere) that they would now need to cross an apparent ‘threshold’ in order to bypass mediation
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(the alternative would be to go through the motions and secure confirmation from a mediator that the case is unsuitable, but this of course causes delay). Child Protection Concerns, namely where a child is the subject matter of the application and there is current social services involvement due to child protection issues either involving that child or another child of the family who is living with them (thus any family member or alternative carer seeking a residence or Special Guardianship order in care or pre-care/child protection proceedings will not be expected to attend a MIAM) Social services involvement however must either be evidenced by an enquiry under Section 47 Children Act 1989 or a Child Protection plan is in place. Urgency (Rule 3.8(1) and PD 12B para 12.1)but only where there is a risk to the life, liberty or physical safety of the applicant, their family or their home; or where any delay caused by attending a MIAM would cause a risk of harm to a child (which has the same meaning as in Section 31 Children Act 1989); a risk of unlawful removal of a child from the UK or a risk of unlawful retention of a child who is currently outside England and Wales (there is thus a differential between external and internal abductions);significant risk of a miscarriage of justice, unreasonable hardship to the prospective applicant, or irretrievable problems in dealing with the dispute (such as an irretrievable loss of significant evidence, e.g. ‘post-Imerman’ search orders)); and there is a significant risk that, prior to attending a MIAM, proceedings relating to the dispute will be brought in another state, who may have a valid claim to jurisdiction, which, once seised, would oust the jurisdiction of a court in England and Wales. Previous attendance at a MIAM or the granting of a ‘MIAM exemption’ within the last four months (note the necessity therefore of avoiding delay in subsequently issuing where this is the case otherwise a re-referral will have to be made) Other exceptions include where an application is made for an order in existing proceedings; the application is to be made without notice (PD 12B para 12.2 and 12.3); the dispute concerns financial issues and either the applicant or the other party is bankrupt (thus significantly limiting the potential financial remedies available); the applicant does not have sufficient contact details for any of the respondents; the prospective applicant or all of the prospective respondents are subject to a disability or other inability that would prevent attendance unless appropriate facilities can be offered; or are unable to attend because:
•
they are in prison or otherwise detained
•
subject to conditions of bail that prevent contact with the other person
•
subject to a licence with a prohibited contact requirement in relation to
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Other exemptions include where the prospective applicant or all the prospective respondents are habitually resident outside England and Wales; a child is one of the parties pursuant to FPR 2010 r 12.3(1) or a child is one of the prospective parties by virtue of FPR 2010, r 12.3(1) and where there is no mediator within 15 miles, OR there is no mediator within 15 miles who can offer MIAM facilities (or 3 if more than 3), OR there is no mediator within 15 miles can offer a MIAM within 15 days There is thus a clear expectation that a prospective applicant should be able to find an authorised family mediator within 15 miles of their home (see the exemptions contained in rules 3.8(1) (o), 3.8(1) (p) and paragraphs 24 and 25 PD 3A. If these exemptions are claimed then evidence will need to be produced at the first hearing as to the names, contact information and details of the dates of contact with the mediators concerned (para 27 PD 3A) There is no general ‘other’ exemption. An applicant, for example, who wishes to issue an application for a financial remedy because of delays in voluntary disclosure cannot now validly claim an exemption unless such delay in attending a MIAM would cause irretrievable problems in dealing with the dispute (including the irretrievable loss of significant evidence)). There is furthermore no specific power in Part 3 for the court to disapply the MIAM requirements outside the exemptions given. Where a MIAM exemption has been claimed the Court has a proactive role in inquiring as to its validity and if not satisfied that the exemption has been validly claimed can direct the applicant or the parties to attend a MIAM and, if necessary, adjourn the proceedings to enable this to take place unless it considers that in all the circumstances of the case the MIAM requirement should not apply to the application currently before the court having regard to:
•
any applicable time limits;
•
the reason or reasons why the MIAM exemption was not validly claimed;
•
the applicability of any other MIAM exemptions; and
•
the number and nature of issues that remain to be resolved in the
proceedings (Rule 3.10)
This seems to suggest that an inadvertent incorrect claim for an exemption might be treated differently from a knowingly false claim for one. Thus the expectation is that a MIAM will be attended unless one of the exemptions applies. If an exemption has not been validly claimed, the applicant can expect to be sent off to a MIAM, unless they can come up with a good reason why they should not have to. 60
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Where a case is adjourned at FHDRA, there might well be costs consequences! It is more than likely however that this will be picked up at the allocation stage by the “Gatekeepers” so that directions can be given to attend a MIAM whilst at the same time listing the FHDRA given the fact that a MIAM must take place within 15 days of contact and the FHDRA within weeks 5 and 6 of issue thus affording sufficient time to attend prior to the hearing. The Mediator’s exemption is contained in rule 3.8(2). This arises where an authorised family mediator confirms in the relevant form that:
•
Mediation is not suitable as a means of resolving the dispute because
none of the respondents are willing to attend a MIAM or have failed
without good reason to attend.
the case is otherwise unsuitable for mediation (it appears no reasons need
•
be given by the mediator as to why this is so although cases where drink
and drugs are involved may prove a suitable exception or where the
parties are in agreement and there is no dispute to mediate (e.g. an
unopposed order is required in cases concerning transfer of a council
tenancy so as to avoid the non opposing transferor making themselves
voluntarily homeless) Rule 3.9 provides that only an authorised family mediator may conduct a MIAM and at that meeting they must:
•
provide information about the principles, process and different models of mediation, and information about other methods of non-court
dispute resolution;
•
assess the suitability of mediation as a means of resolving the dispute;
•
assess whether there has been, or is a risk of, domestic violence; and
•
assess whether there has been, or is a risk of, harm by a prospective party
to a child that would be a subject of the application.
Those of us who undertake LAA funded work will find the exemptions readily recognisable as this requirement has subsisted for some time in relation to funded clients and at least initially provided for a certain amount of duplication of process. FPR 2010, Practice Direction 3A supplements the new Pt 3 and in particular provides useful information (amongst other things) about:
•
What proceedings are ‘private law proceedings relating to children’ (for
example, s 8 orders, parental responsibility orders, orders appointing a
children’s guardian, an order giving permission to change a child’s
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surname or remove a child from the UK, a special guardianship order and
an order varying or discharging such an order).
What proceedings are ‘proceedings for a financial remedy’ (for
•
example, proceedings for MPS, periodical payments, property
adjustment orders, variation orders, pension sharing orders or pension
compensation sharing orders, Sch 1 proceedings, neglect to maintain
proceedings, alteration of maintenance agreements proceedings, failure
to maintain proceedings and applications under MCA 1973, s 10(2) / CPA
2004, s 48(2)).
What evidence can be used for the domestic violence MIAM exemption
•
and the bankruptcy MIAM exemption.
•
How to find an authorised family mediator.
•
How to fund a MIAM (Legal Aid is available for MIAMs).
3.5 Part 4: Case management powers Part 4 of the rules (again in similar format to CPR Part 3) provides the court with extensive case management powers with the intention of enabling it to regulate proceedings before the court. These powers are in addition to any other powers given to the court by any other rule, practice direction or other enactment. They include:
•
extending or shortening the time limit for compliance with any rule,
practice direction or order (this can be granted retrospectively);
•
making orders for disclosure and inspection (including specific disclosure);
•
adjourning or bringing forward a hearing;
(This, it will be noted, includes the power to consider a last minute application to adjourn a hearing for which the following principles can be gleaned from case law relating to the CPR, namely the court must have specific regard to :
(a) the parties’ conduct and the reason for the delay;
(b) the extent to which the consequences of the delay could be overcome
before trial;
(c) the extent to which a fair trial might be jeopardised by the delay;
(d) specific matters affecting the trial such as the illness of a witness;
(e) the consequences of an adjournment for the parties and the court.
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(Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 3070)
•
requiring a party or legal representative to attend court;
•
holding a hearing and receiving evidence by telephone (it is suggested
that telephone hearings ought to become an increasingly useful feature
in family proceedings much as they are with regard to their civil
counterparts);
•
staying the proceedings either generally or to a specified date (this might
be particularly appropriate where matters are subject to ongoing
mediation and negotiation and, as with the powers of adjournment set
out previously under Part 3, there will no doubt be provision in the order as
to keeping the court informed with regard to outcome prior to expiry of
the stay, as currently under the CPR);
directing a separate hearing of any issue (Split hearings);
•
(In so far as guidelines in deciding whether or not the court should direct a separate trial of any issue, again reference may be had to CPR case law regard being had to the fact that:
a)
only issues that are decisive or potentially decisive should be identified;
b)
issues should be decided on the basis of a schedule of agreed or
assumed facts;
c)
the issues should be triable without significant delay, making full allowance
for the implications of a possible appeal;
any order should be made by the court following a case management
d)
conference. (McLoughlin v Grovers (A firm) (2001) EWCA Civ 1743))
•
excluding an issue from consideration (e.g. the raising of conduct in
proceedings for a financial order);
•
directing a party to file and serve an estimate of costs (note that this can
be ordered at any time and not merely, as currently required under the
ancillary relief procedure, before a hearing);
taking any other step or making any other order for the purposes of
•
managing the case and furthering the overriding objective (this is an
extremely wide ‘catch all’ clause which sweeps up everything else)
It will be clear from all this that there is a wide discretion to conduct proceedings in the manner most appropriate to the issues and available evidence, from a full hearing with witnesses at one end of the scale, to submissions on the basis of reading the evidence at the other. One of the aims of the overriding objective is to use
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means which are proportionate to the importance, complexity and gravity of the issues before the court. The relevant considerations will be:
I.
the sufficiency of the evidence to make the decision;
II.
whether the evidence the applicant for a full trial proposes to adduce,
and whether the opportunity for cross-examination is likely to effect the
outcome;
III.
the welfare of any child and the affect of further litigation;
IV.
whether the delay will be so detrimental to a child’s welfare that
exceptionally there should not be a full hearing;
V.
the prospects of success of the application;
VI.
whether justice requires a full investigation with oral evidence.
(Re B (Minors) (Contact) [1994] 2 FLR 1)
The court’s case management powers also include the power of the court to make any order subject to conditions, including the condition of paying a sum of money into court and specifying the consequences of any failure to comply (FPR 2010, rule 4.1(4). Such power is often used within the civil jurisdiction where the prospects of success of an application are considered marginal. This provision may provide some protection for a respondent should the applicant face a costs order which ultimately they might not be able to comply with. How far this is going to be used in family proceedings, which of course are different in nature from their civil counterparts, remains to be seen, but it is a useful power to have in addition to perhaps those cases where the claimant has to provide an undertaking in damages and, subject to means, does provide more security. However, such an order should not be made unless the court is satisfied that in all the circumstances such a sanction is appropriate. As far as other non-pecuniary conditions are concerned (e.g. strike-out), such conditions must be clear and precise and capable of being complied with. It is also worth noting that the court is not obliged to impose such an express sanction immediately but can do so at a later date if such non-compliance persists. As noted, the court can go on to specify the consequences of failure to comply with any condition imposed which might consist of striking out the application although clearly the response to such a potential breach will need itself to be proportionate.
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Of importance also is FPR 2010, rule 4.1(5) which provides that in making any case management decision the court can take into account whether or not a party has complied with any pre-action protocol. This is particularly important in this age of a ‘cards on the table’ approach and in encouraging parties to try and settle matters. In future, any failure to comply with such protocol can be visited by sanctions through the court’s case management powers. Whilst the power to vary or revoke orders is provided for by rule 4.1(6) this does not extend to allowing the court to revisit a final order as a substitute for an appeal. Reference should be made to case law arising from the CPR in relation to the operation of this specific provision within the Family jurisdiction and more particularly the cases of: Lloyd’s Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740; Collier v Williams [2006] EWCA Civ 20; Edward v Golding [2007] EWCA Civ 416; Roult v North West Strategic HA [2009] EWCA Civ 444 and Tibbles v SIG Plc (2012) EWCA Civ 518. In essence, the Court will be extremely cautious in exercising its apparently broad and unfettered power under this provision and will need to take into account a wide range of factors when considering an application to vary or revoke an order. In particular, the Court will seek to ascertain whether there has been a material change of circumstances since the order was made, or where the facts on which the original decision was made were (innocently or otherwise) mis-stated or there has been material non-disclosure. Finally, any application to vary must be made promptly and any delay in doing so will not be met with much sympathy from the court. Having said that reference must be had to the case of Re C (A Child) (2013) EWCA Civ 204 relating to an allegation of undue pressure from an advocate to agree to the terms of a consent order: “I am left with some concern whether the principles set out in Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2012] 1 WLR 2591 and Arif v Zar & Anor [2012] EWCA Civ 986 apply without reservation to consent orders. In some ways a consent order may be more sacrosanct than an interim order of the court made in the course of litigation such as was discussed in Tibbles, since a change of circumstances short of frustration does not usually justify setting aside an agreement, let alone an agreement formalised by an order of the court. On the other hand, duress for undue influence may, if proved, justify setting aside an agreement, and perhaps even a court order made by consent, just as much as a misstatement for non-disclosure, such as is referred to in paragraph 39(ii) of the judgment of Rix LJ in Tibbles.”
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“In this case the judge considered the authority of Tibbles v SIG Plc (trading as Asphaltic Roofing Supplies [2012] 1 WLR 2591 and identified the ratio as establishing that the court would not vary or revoke its own order save where there had been a material change of circumstances since the order was made or the original order can be shown to have been based on a misstated fact or material non-disclosure. That test might be entirely apposite following a contested hearing…………… it is not necessarily the correct approach in relation to a consent order, even less so where the misstatement is said to be advice from counsel or solicitor to his own client.”
Having said that the case of L v L [2008] 1 FLR 26 seems to indicate that the argument as to the setting aside of the terms of an order on the basis of bad legal advice, or unfair pressure falling short of duress or undue influence, is trumped by the need for finality of litigation. Again, similar to the CPR, the FPR 2010 gives the court jurisdiction to exercise any of these case management powers of its own initiative, which again reinforces the overriding objective through ‘active case management’. When deciding to exercise such powers, the court may:
•
Give any person likely to be affected by any order the opportunity
of making representations and to specify the manner and time by which
such representations should be made (r 4.3(2));
Hold a hearing to decide whether to make the proposed order giving the
•
parties at least 5 clear days notice (r 4.3(3)); or
Make such order without a hearing and without representations.
•
Where the court decides to make an order of its own initiative without hearing the parties (an ‘own motion order’), the face of the order must contain a statement that any party affected by it may apply to have it set aside, varied or stayed within a specified period or, in the event that no period is specified, within seven days of service of the order upon them (r4.3 (4) (5) & (6)) Therefore, if not happy, act quickly; one has an automatic right to do so. Civil Restraint Orders As indicated earlier, an extremely important addition to the new FPR provides that where, on exercising a case management decision, the court strikes out a case or dismisses an application and considers that such application was totally without merit, then the court must record that fact on the face of the court file and consider whether it is appropriate to then go on and make a civil restraint order. (r 4.8). The court will only go on to make such an order if the court records indicate that there have been two or more such applications which have been adjudged as being totally without merit. 66
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This is an extremely important weapon in the court’s armoury, particularly when faced with vexatious litigants in person, the guidance for which is set out in PD 4B. What is clear is that the court should not consider such an order unless there have been multiple applications made which have been totally without merit. A civil restraint order (CRO) consists of three distinct types of order:
•
a limited civil restraint order;
•
an extended civil restraint order;
•
a general civil restraint order.
Each order is more draconian than the one before and the court will adopt a stepped approach in that if a lower grade order doesn’t work the court must then go on to the next level (R (Kumar) v. Secretary of State for Constitutional Affairs [2006] EWCA Civ 990, [2007] 1 WLR 536; Ferraro v. Halifax plc & Albert Dock Management Ltd [2007] EWHC 2323). Thus, when dealing with a vexatious litigant, the above restrictions should be imposed in order progressively if the litigant continues to act in such manner, unless the court is of the opinion that such a CRO would not be sufficient or appropriate, e.g. where a litigant adopts a scattergun approach to litigation on a number of different grievances without necessarily exhibiting such an obsessive approach to a single topic that a limited CRO can appropriately be made against them (perhaps more of a rarity in family proceedings than in general civil proceedings). This power does not apply however to Children Act proceedings where CA 1989, s.91 (14) still applies.
3.5.1 Limited civil restraint order This can be made either by a county court (including by a district judge) or by a High Court judge in circumstances where a party has made two or more applications which are totally without merit. The effect of such an order is to restrain a person from making any further applications in the proceedings without first obtaining permission of the court. Such an order is therefore limited to the particular proceedings in which it is made and will remain in force for the duration of the proceedings unless the court orders otherwise.
3.5.2 Extended civil restraint order This can only be made by a High Court judge and applies where a party has persistently made applications which are totally devoid of merit. The effect of such
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an order is to restrain a party from making applications in any court concerning any matter involving or relating to, or touching upon, or leading to, the proceedings in which the order is made without first seeking and obtaining the court’s permission. Such an order can be made for up to two years.
3.5.3 General civil restraint order This order again can only be made by a High Court judge and is appropriate where a party persists in making applications which are totally without merit in circumstances where a limited or an extended civil restraint order would be insufficient or inappropriate. The effect of this order is to restrain a party from making any application in any court without first obtaining the court’s permission. Such an order cannot last for more than two years and is an order of the last resort, only to be used where the lesser orders have been tried and have failed. Any party may apply for such an order using the Part 18 procedure. A party subject to such an order, when seeking permission to make an application, will need to apply in writing and provide at least seven days’ notice to the other party, setting out the nature and grounds of the application and submitting to the court any response to the same from the other party. Such applications will normally be determined without a hearing. Strike Out FPR 2010, rule 4.4 also provides the power (similar to that contained in the CPR) to strike out a statement of case. Its introduction is intended to ensure that the power given mirrors the court’s power to strike out in civil proceedings and is complementary to the court’s inherent powers of case management. A “Statement of case” is defined as the whole or part of an application form or answer (r 4.1). It should be noted that this new power does not apply to private or public law proceedings under the Children Act 1989, the Human Fertilisation and Embryology Act 2008 and adoption and placement proceedings. The power arises in the following circumstances: 1.
where the statement of case discloses no reasonable grounds for bringing or
defending the application (contrast the CPR equivalent of no ‘reasonable
grounds’ for bringing a claim);
2.
where the statement of case is an abuse of the court process or otherwise likely
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3.
where there has been a failure to comply with a rule, practice direction or
court order.
Ground 1 above deals with hopeless cases; however, if in doubt, the court can always direct the filing of further information on an ‘unless’ basis before exercising such a provision (i.e. unless the defaulting party complies with the provision within a set timescale the application will be struck out). Some examples of where the court may conclude that the statement of case discloses no reasonable grounds for bringing or defending the application are contained in the accompanying PD 4A and include: (a) those which set out no facts indicating what the application is about; (b) those which are incoherent and make no sense; (c) those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable application against the respondent.
An application which has no prospect of succeeding either in law or on the facts or cannot be justified because it is frivolous, scurrilous or ill-founded may also be struck out as an abuse of process (See for example T v M [2013] EWHC 1585) An answer is liable to be struck out where it consists of a bare denial or otherwise sets out no coherent statement of facts. However, it is more than likely, in accordance with the overriding objective, that the court will allow the respondent time to file and serve a proper answer or to clarify it or file additional information in accordance with para.4.4 of PD 4A. Such order can be made of the court’s own initiative, or on application (under Part 18) and with or without a hearing. In addition, where the court does strike out all or part of a party’s statement of case, query can it also go on to enter judgment if the applicant can satisfy the court that there are no reasonable grounds for bringing or defending the application in light of the fact that rule 4.4(2) provides that when striking out a statement of case the court can go onto make such consequential order as it considers appropriate (see later) In accordance with the overriding objective, all such strike-out applications should be made as soon as possible so as to cut short any ‘hopeless’ cases sooner rather than later. Whilst such applications can be made without filing or serving any evidence in support, due to the draconian nature of such applications, it is invariably good practice to do so. (See in any event PD 18A, para.11.)
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A court, however, will not simply strike out an application if the statement of case does present an arguable application albeit poorly. The court will also not strike out a statement of case if it appears that the application is unlikely to succeed as the court must be satisfied that the application is bound to fail. If an issue can only be determined by oral evidence at a hearing then the court should not strike out the application without first hearing that evidence. Regarding ground 2, abuse of the court’s process has been defined as ‘using that process for a purpose or in a way significantly different from its ordinary and proper use’ (Attorney General v. Barker [2000] 1 FLR 759). The court should adopt a broad merits-based approach when considering an application to strike out a claim on the basis that it is an abuse of process; an example of this might be a case where the claim could, and should have been brought in previous proceedings (Henderson v. Henderson[1843–60] All ER Rep 378) or where a claimant is guilty of misconduct in relation to proceedings which is so serious that it would be an affront to the court to permit them to continue their claim (non-disclosure). A recent example can be found in the case of Vince v Wyatt [2013] EWCA Civ 495 which highlighted the fact that there was no CPR equivalent of Summary Judgement (CPR r 24.2) in the FPR and thus such omission prompted the question whether the court is able to allow a claim to continue to proceed to trial when it had no real prospect of success. The Court felt that it was hard to believe that that was the intention of the rulemakers and that the solution lay in r.4.4 (1) (b) the wording to which is identical to that of CPR r.3.4 (2)(b) (the interpretation and operation of those two rules being essentially the same) Although an application to strike out under r.4.4 (1) (b) would only succeed in rare and exceptional cases, (the court taking a dim view of parties who applied to strike out merely on the grounds that the other side’s case was weak or unlikely to succeed) on the facts of that case, although there is no statutory bar to bringing a claim for financial relief long after a divorce, the court held that it should not allow either party to a former marriage to be harassed by claims for financial relief issued many years later and which had no real prospect of success: “The court must adopt the same broad approach to the interpretation and application of that rule as it adopts in relation to CPR rule 3.4(2)(b) in the context of civil proceedings. One significance difference between (a) claims for financial relief in family cases and (b) civil claims is this. In the family cases there is no limitation period, although in practice long delay may constitute a ground for dismissing the
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claim. In civil cases, on the other hand, if a claim is brought too late the statutory defence of limitation is available. In the family context, there is no statutory bar to bringing a claim for financial relief ten, twenty or even thirty years after the divorce. Nevertheless, in my view the court should not allow either party to a former marriage to be harassed by claims for financial relief which (a) are issued many years after the divorce and (b) have no real prospect of success. It must be an abuse of the court’s process to bring such proceedings.”
When considering a strike-out application the court however must have regard to all relevant considerations within the history and exercise its case management powers not just to protect against the greater prejudice but also to the husband (or wife) and the resources of the court. With regard to ground 3, again an ‘unless order’ should normally be used in the first instance as any sanction imposed must be appropriate and proportionate in the circumstances. Courts should not abuse their case management powers by going to the extremes of striking out claims where a proportionate use of a more flexible power would be more appropriate. (Biguzzi v Rank Leisure plc (1999) 1 WLR 1926) Moreover, the activation of a sanction in an ‘unless order’, is a powerful weapon in a judge’s case management armoury and should only be deployed where its consequences can be fully justified. Having said that, there is no reason why the court cannot make serious, flagrant and dishonest breaches of a court order the subject of such an order. For another decision on Strike out reference can be had to G v G (Financial Remedies: Strike out) [2012] Fam Law 800 where the husband’s application to vary a deferred lump sum order was struck out on the wife’s application since the husband had failed to meet the disclosure requirements of an earlier “unless order”. However, there are other sanctions that are available to the court and which must bear consideration as alternatives include the following: • An adverse costs order – the court may order that the defaulting party
should pay the costs occasioned by the delay on an indemnity basis and
summarily assess them.
If the court is of the view that the fault lies with the solicitor, and not the party,
the court may make a wasted costs order instead.
• ‘Unless orders’ (see above) – in reality a court faced with a strike-out
application is likely initially to make an ‘unless order’ as any sanction
imposed must be proportionate to the breach.
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Moreover, any party applying to enforce an order, or to attach a sanction or
both, must do so promptly, and provide an advance warning first, in
accordance with the overriding objective.
Any sanction embodied in an unless order will normally take effect without the
need for any further order if the party to whom it is addressed fails to comply
with it in any material respect. It is thus unnecessary for a party who seeks to rely
on the other party’s non-compliance with such order to make an application
to the court for the sanction to be imposed. However, do note that an order
which states that in the event of default the claim ‘will be struck out’ implies
that another order has to be made by the court actually striking the claim out,
whereas an order that states that the claim ‘will’ or ‘shall be treated as struck
out’ does not require another order to validate it. This is now confirmed in PD 4A
– Striking out a Statement of Case at para.2.6.
• Conditional orders – to further the overriding objective, an order may be
made subject to conditions (including a payment into court) and may
specify the consequences of failure to comply with them.
The conditions must be clear and precise and capable of being complied with.
The court is not obliged to impose an express sanction for failure to comply;
however, it can do so at a later date, i.e. striking out all or part of a statement
of case of a party who fails to comply, or preventing a party from subsequently
taking part in the proceedings until the breach is remedied.
• Impose a stay – the court has specific power to stay an application until
further order (PD 4A, para.3.3) and make provision that no application
to lift the stay shall be heard until the applicant files such further
information or documentation as specified by the court. This is particularly
useful in circumstances where an application is ambiguous or does
not make sense and provides the applicant with an opportunity to rectify
matters. Where the court does activate a striking out of a parties statement of case with an order that that party do meet the other sides costs, but before meeting that costs order another application is brought by the paying party on substantially the same facts, then the court has the power to stay that fresh application until the costs of the first application have been paid (FPR 4.4(3)) If such an order is made, FPR 2010, rule 4.4(5) again makes provision for marking the court file ‘totally without merit’ and consideration being given to the making a civil restraint order in an appropriate case.
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These powers are extremely important for all practitioners to be aware of when faced with a recalcitrant litigant and is a clear improvement on the rather less productive ‘penal notice’ sanctions previously in place. Relief from Sanctions A party in default must apply for relief from the sanction imposed under FPR 2010, rule 4.5 if they wish to escape its consequences. FPR 2010, rule 4.5(1) makes important provisions with regard to obtaining such relief, the obligation being on the defaulter. Rule 4.5(3) specifies that where the time for doing something provided for by an order is subject to an express consequence should there be a failure to comply (an ‘unless’ order or ‘conditional’ order) the date for such compliance cannot be extended by the parties through agreement without the courts express sanction. FPR 2010, rule 4.6(1) sets out a checklist which the court must systematically consider as part of the court’s balancing exercise in determining such applications which largely mirror those contained in the old 3.9 CPR checklist:
•
the interests of the administration of justice;
•
whether the application for relief was made promptly;
•
whether the failure to comply was intentional;
•
whether there was a good explanation for the failure;
•
compliance with other rules, practice directions, court orders and any pre
action protocol;
•
whether the failure to comply was caused by the party or their legal
representatives;
•
whether the hearing date can still be met if relief is granted;
•
the effect which failure to comply (or the granting of relief) would have on
either side or a child whose interest the court considers relevant.
Note the rule refers to relief from ‘any sanction’ and therefore the ambit is extremely wide and includes provisions as to costs. When hearing such applications, all the circumstances of the case must also be considered. In Bournemouth & Boscombe Athletic FC Ltd v Lloyds Bank Plc [2003] EWCA Civ 1755 it was held that an intentional failure to comply with the CPR equivalent in the sense of a deliberate decision not to comply is a significant finding in the context of an application for relief from sanctions.
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Practitioners will need to note that when making such applications, justification for the order sought will need to fall fairly and squarely within the above checklist in the evidence in support of the application. Reflecting on case law in relation to the old civil jurisdiction counterpart Bansal v Cheema (2000) CCS 114, [2001] CP Rep 6, and Woodhouse v Consignia Plc (2002) EWCA Civ 275 emphasised the importance of judges systematically considering the checklist when considering any aspect of relief against sanctions as are relevant to the facts of the case. Khatib v Ramco International (2011) EWCA Civ 605, however, stated that although systematic consideration of the factors set out in the rule was not necessarily required the judge must nevertheless conduct an appropriate review and balancing exercise. Furthermore, where a judge is considering an application for relief against sanctions the consequence of a refusal for which would be that there would no trial on the merits, the judge should state expressly in their judgment that they had considered the issues of legitimate aim and proportionality and in essence the applicant’s art.6 rights. Thus applicants for relief from a sanction should bear in mind that the court must consider all the circumstances, as well as those set out in rule 4.6(1). Other circumstances include any order made by consent and whether or not the parties have legal representation. The court must also consider not only the effect of granting the relief sought but also the effect that not granting relief would have on each party. (Hayden v Charlton (2011) EWCA Civ 791). The court will only grant such relief of its own initiative in exceptional cases as normally evidence will be required as to the rule 4.6 factors before the court’s discretion can be exercised. It is likely that pre-Jackson reform CPR case law will have some bearing in guiding the court in this process, although clearly there is a substantial difference in ethos between the two jurisdictions. In particular, whilst the court has jurisdiction to extend time for compliance with an order after the time for its compliance has passed (even when there is ‘an unless’ order), that power will no doubt be exercised with caution; accordingly, it is always better to be proactive and avoid retrospective applications. The true test, in practical terms, in determining such applications will be whether, notwithstanding that an unless order was a proper order to make for the purposes of furthering the overriding objective in the circumstances known at that time, it remains appropriate at the time of the application for relief, to allow the sanction to take effect. Clearly, the affected parties’ art.6 rights under the European Convention 74
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on Human Rights (the right to a fair hearing) will be engaged in this process. The question has to be whether the court’s decision to maintain the sanction, with or without conditions, constitutes a legitimate aim, is proportionate in the circumstances and does not destroy the essence of a party’s rights under art.6. As far as rule 4.7 goes relating to the courts power to generally rectify errors of procedure, the courts overriding objective will no doubt assume prominence.
3.6 Part 5: How to start proceedings Part 5 is derived from CPR Part 7. The previous rules made provision for family proceedings to be commenced in a variety of ways, e.g. petition, application and summons. As part of the goal in making the rules accessible and simple, proceedings are now commenced by an application. All the forms required by the new rules are listed in PD 5A for ease of reference. The forms are designed to be as simple as possible. There is extensive use of tick boxes and there are accompanying guidance notes to assist in the completion of the longer forms. A form must have attached to it any documents which, in the form, are stated to be required or are referred to. Note rule 5.1(2) which provides that any form may be varied by the court or a party if such variation is required by the circumstances of a particular case. This is quite interesting. Does this mean that information as provided by the form can be omitted or does it mean that information not formally provided by the form can be added and, if so, to what extent? The answer appears to be in rule 5.1(3) which prohibits the omission of information which otherwise must be given in the form itself, thus the rule appears to allow firms to modify them in order to satisfy their own software or ‘brand’ requirements. Furthermore PD 5A para 1.2 specifies that the forms may be:
(a) modified as the circumstances require, provided that all essential
information, including information or guidance which the form gives to the
recipient, is included;
(b) expanded to include additional pages where necessary, provided that
any additional pages are also verified by a statement of truth.
Cross reference must also be had to rules 29.1 and 29.2 in so far as omitting details as to address and contact details are concerned. Where both the High Court and the Family Court have jurisdiction to deal with a
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particular matter then the proceedings must be commenced in the family court unless proceedings are already progressing in the High Court or the Court, a rule, other enactment or practice direction provides for otherwise (Rule 5.4) There are three categories of applications under the rules, the first two being freestanding only:
•
Specific applications as prescribed by the rules
•
Part 19 applications
•
Part 18 applications
Note, in so far as Part 18 applications are concerned, where such an application is to be made by application notice, the forms to be used are: (i) Form C2 where the application is made in the course of or in connection with proceedings under Part 12; (ii) Form D11 where the application is made in the course of or in connection with proceedings under Parts 7, 8 or 9; (iii) Form FP2 in any other case. Now for a brief summary of the more common forms which may be encountered.
3.6.1 Application for a matrimonial order Worthy of note is the generic Application for a Matrimonial Order (Form D8) (although still called a petition). It is comprised exclusively of boxes to fill in or tick, and presumably will spell the end for petitions typed from scratch. Its style and layout are uncluttered and it is very easy for people to fill out themselves without legal assistance (no bad thing considering the almost total abolition of legal aid for divorce). There are comprehensive notes for guidance which can be found at D8 (notes) which amongst other things also sets out the procedural requirements for those who wish to omit their address from the form. The following items need to be stated: the dates of birth and gender of the parties and children, whether a statement of arrangements is attached, whether special assistance will be needed at court and whether the applicant is represented. It is no longer necessary to state whether the parties’ names have changed since the marriage, or whether there have been child support proceedings. There is also no reference at all to the jurisdictional basis for the application.
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The application also mentions the differences between civil and religious marriages for those persons who may have entered into two ceremonies. Part 9 of the form is significant in so far as service details are concerned, as both parties can now give an address for service. The particulars in support are now referred to as ‘the statement of case’.
3.6.2 Statement of arrangements form As previously highlighted, the statement of arrangements form for the children has a statement of truth at the end. In addition, there is no duplication of the children’s details which have already been given in the petition. Having said that the form contains the same basic information as previously but in a better format. At the end of the form, where the arrangements for the children are not agreed, there is space for the Applicant to state whether there is an intention to resolve those issues directly with the respondent, use ADR/Mediation or apply to the Court.
3.6.3 Answer Although this is a new form, it clearly states on page 1: ‘PLEASE TREAT THIS AS MY ANSWER TO THE PETITION,’ thus an ‘answer’ is still an ‘answer’ (FPR 7.12(8)) It also indicates that if the respondent wishes to apply for a matrimonial order then that should be done on their own application which will be issued within the existing case (FPR 2010, rule 7.14).
3.6.4 Form A (A1 in the family proceedings court) The form reflects the pension compensation attachment and sharing order provisions. It also asks if the applicant has attended a mediation information/assessment meeting in line with the objectives set out in Part 3. Presumably, any covering letter issuing an application will need to deal with these requirements so as to avoid the possibility of an automatic adjournment
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3.6.5 Forms E, E1 and E2 There are three Financial forms: Form E, which applies to proceedings for a Financial Order, Form E1, which applies to proceedings for a financial remedy in the county court (but excluding an application for a financial order) and Form E2, which applies to applications for a financial remedy in the magistrates’ court. In so far as the Form E itself is concerned (which deals with proceedings for a financial order – that is the old ancillary relief claims) the warning on the first page has been amended to include reference to the Fraud Act 2006. It has also been updated to include references to the Pension Protection Fund and PPF Compensation. Paragraph 4.5 under the heading ‘Details of any other circumstances that you consider could significantly affect the extent of the financial provision’ now mentions:
1.
Any agreement made between you and your spouse/civil partner before
or after your marriage/civil partnership stating whether or not you rely
upon the agreement giving your reasons (echoing the importance of the
decision in Rademacher v. Granatino [2010] UKSC 42, [2010] WLR (D) 260).
2.
Any plans to marry, form a civil partnership or live with a new partner.
The Form E notes for guidance have also been updated and are easier to read.
3.6.6 Form C1A The section for giving details of any alleged domestic violence and harm is easily set out in a tick box format with the ability to indicate whether such harm is to the applicant or a child. The form also asks about any FLA 1996 orders which have been sought. There are questions about the whereabouts of the children’s passports which is a significant addition, especially in potential child abduction cases. Section 5 of the form requires a party to indicate what type of contact that party would agree to (this of course assumes the person completing the form is the one with the children). Section 7 asks what facilities are needed at court and includes such things as separate waiting rooms, exits and entrances, video links and advance viewing of the court, all of which are aimed at reassuring a nervous applicant or one who has faced domestic abuse or otherwise is in fear of the other party. 78
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Finally, the application needs to be signed with a statement of truth. Another innovation is that any person who receives an application can now comment upon the allegations on the same form, sign the statement of truth and send it to the court. In Re C (A Child) [2013] EWCA Civ 1412 the court made suggestions to improve the application notice (C100) and supplemental information form (C1A): “where a ‘tick box’ formula is used to identify the existence of abduction and/or domestic violence, it should be a requirement not a request that relevant particulars are given and that requirement should be made clear on the form. The notice and form would be of much greater use to the judges of the court if they contained in template form a short sequence of narrative paragraphs whose completion is mandatory dealing with the order applied for, the precipitating circumstance, the allegations, the specific proposal relating to the application and the required particulars of exceptional urgency and notice.”
3.6.7 Form C2 It is a requirement that the form is signed with a statement of truth.
3.6.8 Form C5 This form relates to an application concerning the registration of a child-minder or provider of day care (Childcare Act 2006, s.72). The orders that can be made are: 1.
Cancellation of the registration of the child-minder or provider of day care.
2.
Variation of a requirement imposed on the child-minder or provider of
day care.
3.
Removal of a requirement, or imposition of an additional requirement, on the
child-minder or provider of day care.
3.6.9 Form C100 This form relates to applications for a s.8 order and to vary, or discharge such order under CA 1989. It allows for the names of three children on the first page and their basic details, including the names of the parents of each child. References to ‘sex’ have been changed to ‘gender’.
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There is also space for details for the parties’ email addresses to be included and there is no need to repeat the children’s details throughout the form. Details of all persons with parental responsibility and all social workers’ details are now provided on one page. Most important is the statement of truth that needs to be signed at the end of the form.
3.6.10 C110A Form C110A has been revised to include applications for emergency protection orders so that it will now be possible to apply for Part 4 an Emergency Protection Order at the same time and on the same form. In addition, the threshold statement and allocation proposal form, which were previously annex documents, have been incorporated into the form.
3.6.11 Other forms Other Children Act forms of note include the following: • C63 – Application for a declaration of parentage. This form outlines the
same method of application as before but the requirements are now
encompassed in the form rather than the old FPR 1991, rule 3.13. An
application can be made in any court (Family Law Act 1986 (FLA 1986),
s.55A (1)). • C64 – Application for declaration of legitimation under FLA 1986, s.56 (1)
(b) and (2). Such application can only be made in the High Court or
county court. • C65 – Application as to declaration of an adoption effected overseas.
Such application (FLA 1986, s.57) can only be made in the High Court or
county court. • C66 – Application for inherent jurisdiction order in relation to children.
Again, such application can only be made in the High Court or
county court.
•
Revised application forms A53 (application for a contact or non-contact
order) and A54 (application for variation or revocation of contact or non
contact order) which must be used when applying for contact or to
prohibit contact post adoption. Applications made under section 8 of the
Children Act 1989 will not be accepted.
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All the above forms must be signed with a statement of truth. A full list of the revised forms is set out in PD 5A. In so far as committal applications are concerned, where such an application is made in existing proceedings, it must be commenced by filing an application notice under Part 18 in those proceedings, otherwise such application must be commenced by the issue of a Part 19 application notice (Form FP1). (PD 5A para 2.1) Reference to the Civil Procedure Rules 1998 might prove useful in relation to the filing of documents through the medium of facsimile and email. CPR PD 5A states that filing a document by facsimile should not be undertaken in cases where the hearing is less than 2 hours ahead or where a fee is payable save in the event of an unavoidable emergency. CPR PD 5A paragraph 5.3(2) also emphasises the point that where a party files a document by fax they should then not send in an additional hard copy. The rules governing email communications are contained in CPR PD 5B. Again, such communications must not be used in circumstances which attract a fee.
3.7 Part 6: Service Part 6 of the FPR 2010 regulates service of documents and is derived from CPR Part 6. There is no formal definition of ‘service’ in Part 6. However, the glossary to the FPR 2010 refers to ‘steps required by rules of court to bring documents used in court proceedings to a person’s attention’. The accompanying PD 6A (and annex) sets out a number of general provisions relating to service as follows:
•
when service may be effected by document exchange;
•
service by fax or email;
•
service on members of the armed forces (as defined by the Armed Forces
Act 2006) for which para 10 of the annex provides some useful addresses;
•
applications for service by an alternative method or place of service;
•
applications for an order to dispense with service;
•
deemed service (this does not apply to applications for a matrimonial or
civil partnership order (FPR 2010, rule 6.34));
service on children and protected parties.
•
It is worth mentioning at the outset the rule providing for service by an alternative method or at an alternative place based on the CPR equivalent which replaces the previous rule of substituted service.
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Specifically relating to applications for matrimonial and civil partnership orders, PD 6A deals with the following:
•
service by court bailiff;
•
service on children and protected parties.
PD 6C extends the Registrar’s Direction of 26 April 1988 regarding the disclosure of addresses by government departments (although it does not apply to requests for disclosure from HMRC for which the previous guidance of November 2003 must be referred to). PD 6C now also covers tracing of persons for the purposes of enforcing orders for financial provision, and tracing the whereabouts of a child or person with whom the child is said to be pursuant to the Child Abduction and Custody Act 1985. The practice direction then goes on to list the various bodies who can assist and what information will be required. The bodies include the Department for Work and Pensions (formerly DSS), the Office for National Statistics, the Home Office Identity and Passport Service (formerly UK Passport Agency) and the Ministry of Defence. The rule itself, like many others in the FPR 2010, is broken down into various chapters in order to aid navigation.
3.7.1 Chapter 2 (rules 6.3–6.22) (Service in Matrimonial or Civil
Partnership Proceedings)
Chapter 2 regulates the service requirements of an application for a matrimonial order or civil partnership order which are largely unchanged from the previous rules. In essence an application for a matrimonial order or civil partnership order must initially be served either by personal service (for which see rules 6.7 and 6.17) (but not by the applicants themselves (r 6.5(3))), first class post or, where a solicitor is instructed, document exchange (unless, in the latter case, the solicitor indicates that they are not prepared to accept service by such method (FPR 2010, rule 6.11)). (Note there is no provision for service of such by fax or email; query, however, whether or not one can effect service by way of email and then apply for an application retrospectively for service by an alternative method.) It will be noted that it is also possible to effect service through another service provider who is able to effect ‘next day delivery’ (PD6A para 3.1) The application must state an address at which the Respondent may be served (r 6.10(2))
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Unless otherwise provided for, service on the respondent must be effected at their usual or last known address the responsibility for which now falls on the applicant unless the applicant requests the court to do so (r 6.5(1)). Note the exception to this where service is on a child or protected party. In that case it is the applicant who must effect service pursuant to rule 6.14. The usual or last known address within rule 6.13(2) cannot include an address at which the respondent has never resided, nor an address at which the applicant merely believes the respondent to have resided. Instead, the serving party should have actual knowledge of the address or it should be knowledge that they could have acquired by exercising reasonable diligence. Where the applicant has reason to believe that the respondent is no longer residing at that usual or last known address then they must take reasonable steps to ascertain the current address. Taking as a guide the established principles arising from the CPR it may be surmised as follows:
•
If an address for service is given then the application must be served at
that address.
•
If no address is given then the application can be served at the last
known address.
•
If an address for service is given as a solicitor’s address then one must
serve the application on the solicitor. (It is worth noting that if a party
nominates a solicitor but that solicitor has not notified the applicant that
they are authorised to accept service, then service will still be valid
because the respondent will have provided an address at which service
should be effected (rule 6.12).)
If the solicitor confirms he is authorised to accept service then service must
•
be effected on him (rule 6.11).
•
However, the mere fact that a solicitor is acting does not mean he is
instructed to accept service; do not infer – check first. There must be
express authority to that effect.
There are also new rules which apply where the applicant has reason to believe that the address supplied is an address where the respondent no longer resides at. In that eventuality the applicant must take reasonable steps to ascertain the respondent’s current address. If the applicant is unable to discover the correct address, then service can be effected at an alternative place or by an alternative method provided by the rules.
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The other forms of service which one can have recourse to are: personal service (rules 6.8 & 6.17), service by a court bailiff (Form D89) (rule 6.9 – note that the bailiff’s endorsement of service is now known as a certificate of service), deemed service (rule 6.16), service at an alternative place or by alternative method (previously ‘substituted service’) (rule 6.19) and dispensing with service (rule 6.20 – Form 13B). An application for personal service by court bailiff will only apply where the address for service is in England and Wales and usually only when postal service has been attempted first. Furthermore in cases of service by court bailiff it is worth noting that the practice direction states that such requests will rarely be granted where the applicant is legally represented as it will normally be expected that in such circumstances service should be effected by a process server as opposed to a bailiff thus passing the burden of resources and costs from the court service to the solicitor instructed (PD 6A, para.11.4). In such circumstances it would be prudent therefore to request the other side’s representatives to acknowledge service of the papers (and then apply for deemed service) or request that they ensure that their client promptly files the acknowledgement (rule 6.15), utilising the threat as to costs as a leverage. Failing this, you will either have to resort to personal service, with all its consequential expenses, or seek to persuade the court that, notwithstanding that a solicitor is acting, bailiff service should nonetheless be authorised in accordance with the overriding objective and in the interests of saving expense. The previous express provision for substituted service of an application for a matrimonial or civil partnership order by way of advertisement has now been removed given the rarity of this mode of service. Rule 6.19 enables the court to make an order permitting service by an alternative method or at an alternative place retrospectively by making an order deeming service to have been effected on a particular date (‘the court may order that steps already taken to bring the claim form to the attention of the respondent by an alternative method or at an alternative place is good service’). However, this is only likely to be allowed in exceptional cases, and indeed, not before any other method of service has been attempted first. The court, in such eventuality, will need to be convinced that reasonable steps have been taken to locate the respondent. Applications for alternative service are specifically dealt with within PD 6A, which deals with both prospective and retrospective applications (at para.6).
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Examples of service by such method and the evidential requirements of the same are also, most helpfully, set out in the practice direction and, for the more technologically minded amongst us, also include service by SMS text and voicemail. Of particular note is rule 6.11 which provides that where a solicitor is acting for a respondent and has notified the applicant in writing that they are instructed to accept service, then the application must be served on the nominated solicitor.
3.7.2 Chapter 3 (rules 6.23–6.39) (Service in other Proceedings) Chapter 3 (supported by PD 6A) regulates the service of documents in other proceedings in the UK (as opposed to the jurisdiction) and encompasses:
•
personal service;
•
first class post;
•
leaving in a place specified;
•
fax or other means of electronic communication.
Again, drawing an analogy from the CPR, where such documents are delivered to the recipient in a manner provided for by the rules, they will be deemed served whether or not the recipient actually received them. ‘Last known address’ is plain and unqualified and, on the face of it, it does not matter that the recipient is no longer there. Of particular note is rule 6.23 which provides that such service may now be effected by fax or email (although this rule does not apply to service of an application for a matrimonial or civil partnership order or documents in relation to adoption and parental order proceedings. The rules and the supporting PD 6A in relation to service by fax or email replicate the provisions of the CPR and authorises service by such means not only upon a solicitor instructed by a party to accept service by such means but also upon the party themselves, provided they have indicated in writing that they are willing to accept service by such method in advance of it being effected. Accordingly therefore there must be a specific written agreement to service by email or fax. Notwithstanding this, however, an email or fax number on the notepaper or on a statement of case or answer can be a sufficient indication that the respondent is willing to accept service by such method although, in the case of an email address on the letterhead, it must be qualified by a statement that confirms that service by such method is accepted (which is the opposite to the scenario concerning service
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by fax). The chances are that not many solicitors will be rushing off to their stationers to change their letterhead on this one! In addition, in so far as service by email is concerned, there is the additional requirement to ascertain from the recipient any limitations on their agreement to accept service by such method, e.g. format and size of attachments. Thus, it would be good practice for a party serving paperwork by such method to, in any event, check to see if there are any such restrictive conditions prior to effecting service. Once service has been effected by such method there is no requirement to follow this up with a hard copy, which seems both sensible and environmentally friendly. Note also that confirmation of the date and time of completion of the transmission (be it email or fax) will be sufficient for the purposes of the certificate of service (FPR 2010, rule 6.37). It is also worth noting that there are various provisions throughout the rules requiring documents to be served or sent to persons such as the children’s guardian and CAFCASS officer. Where the children’s guardian is to be so served, the intention is that the guardian shall be served at one and the same time as, and in addition to, the solicitor acting for the child; this is an important new provision (FPR 2010, rules 6.30(3), and 6.31(2), (3)) and eminently sensible. Reference must also be made to the supplementary provisions relating to service on children pursuant to Part 12 (rule 6.33) which also provides for service on a CAFCASS officer and/or, as appropriate, a local authority, in addition to service on any guardian who has been appointed. As far as service on children and protected parties is concerned, rule 6.14(7) makes provision as to how such an application must be served. A document so served in accordance with that rule must be endorsed with a notice in Form D5 as set out in the relevant practice direction (PD 6A, para.9.1).
3.7.3 Chapter 4 (rules 6.40–6.48) (Service out of the Jurisdiction) Chapter 4 of Part 6 regulates service out of the jurisdiction and contains provisions to give effect to Council Regulation (EC) No. 1393/2007 on the service in the Member States of judicial and extra-judicial documents in civil and commercial matters (‘the Service Regulation’), which assists service of family court documents across Europe. Although permission is not required for service of any document outside of the jurisdiction (rule 6.41) there are specific requirements which will need to be observed, more notably that service must be effected by a method which is itself permitted by
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the law of the country in which it is served and, where appropriate, a translation is supplied. Rule 6.44 makes provision for the suppliance of a photograph of the person to be served (if that would assist in effecting service) The rule is supplemented by a practice direction (PD 6B, para.2 regulates service in Member States of the European Union and para.4 regulates service in Commonwealth states or British Overseas Territories). The Service Regulation itself is also annexed to the practice direction. Paragraphs 5.1 and 7.1 helpfully set out the requisite periods in tabular form within which a respondent must file an acknowledgement of service or answer to an application dependent upon where they reside.
3.8 Part 7: Procedure for applications in matrimonial and civil partnership proceedings Part 7 derives from Part II of the old FPR 1991 and regulates the procedure for applications for matrimonial and civil partnership orders. Again it is broken down into various chapters. The procedure to be followed in matrimonial proceedings has remained largely unchanged since the introduction of the special procedure for undefended divorces over 40 years ago. A number of changes however are brought in by the rules with the aim of making the procedure more efficient, encouraging parties to resolve their differences and making the rules more accessible by eliminating some of the more ‘outdated’ terms. Whilst the terms ‘decree nisi’, ‘decree absolute’, ‘judicial separation’ and ‘answer’ have been preserved following consultation (except in civil partnership proceedings where we have the terms ‘conditional order’, ‘final order’ and ‘separation order’), the terms ‘petition’ and ‘cross-petition’ have been replaced by the singular term of ‘application for a matrimonial order’ or ‘civil partnership order’. The rules also reflect the fact that with the advent of the new family court, divorce county courts and civil partnership proceedings county courts no longer exist, the Principal Registry of the Family Division of the High Court is no longer to be treated as a county court and the family court is now the national court for England and Wales.
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3.8.1 Commencing and responding to proceedings This is regulated by FPR 2010, rules 7.5–7.15. (Chapter 2) An application for a matrimonial or civil partnership order must be made in the form set out in PD 5A (Forms D8, D8D & D8N) and be accompanied by the documents specified within the form itself and completed in accordance with the detailed notes which accompany it. Appendix 2 to the old FPR 1991 has thus been dispensed with. The particulars in the application for a matrimonial or civil partnership order (now called a Statement of Case) must be concise yet sufficient enough to show why the applicant is entitled to the order PD 7A paragraphs 3.1 – 3.5 specifically deal with the requirements as to filing the certificate of marriage and the requirements to be met where such evidence is not available. (For a recent case see G v M [2011] EWHC 2561) If the certificate is not in English then a certified translation must be provided. There are separate practice directions, PD 7C and PD 7D, which deal with the specific requirements of polygamous marriages and the provision of gender recognition certificates under the Gender Recognition Act 2004. The new rules differentiate between opposed cases (defended case), where an answer is filed opposing the grant of a matrimonial or civil partnership order, or the respondent has himself or herself filed an application for a matrimonial or civil partnership order, and unopposed cases (undefended case). Note that this new definition now includes applications for a nullity order and therefore unopposed applications for nullity will be treated in the same way as applications for an unopposed divorce and wherever possible dealt with without a hearing. (See FPR 2010, rule 7.19 at 3.8.2 below.) Also note that the detailed provisions relating to medical examinations in nullity proceedings have been removed from the rules and can now be found in the supporting PD 7B – Medical Examinations on Applications for Annulment of a Marriage. In essence, where an application for annulment is based on incapacity to consummate, medical evidence will not normally be required in proceedings which are not defended and even in cases which are defended; such evidence will only be directed where it appears necessary to do so. Any medical evidence that is directed must comply with the rules relating to experts generally as set out in FPR 2010, Part 25, however, PD 7B provides for any examination to be conducted by a Doctor of the same gender as the person to be examined if so requested
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although nothing in the rules themselves prevents a party from relying on other relevant evidence, such as their own medical expert, subject of course to the court’s permission. The Statement of Reconciliation (Form D6) is preserved by rule 7.6. This is a statutory requirement which the rules alone cannot change (MCA 1973 s 6(2)) Rule 7.7(1) provides that a party may not make more than one application for a matrimonial or civil partnership order without the courts permission (utilising the Part 18 procedure) unless the first application has been dismissed or finally determined save in the limited circumstances as provided for in rule 7.7(2) in relation to dissolution proceedings following on from previous proceedings for judicial separation. Of course, this rule does not prevent the Respondent from filing one (provided there has been no Decree Nisi or Conditional Order granted) either in cases where the proceedings are opposed or the Petitioner has failed to progress their own application once lodged. Once the application for a Matrimonial order has been issued a copy must be served on the respondent and any co-respondent along with an acknowledgement of service form and notice of proceedings.
FPR 2010, rule 7.9 entitles an applicant to withdraw an application for a matrimonial order, at any time before it has been served, by giving written notice to the court. This is an improvement over the previous procedure whereby ‘withdrawal’ was not possible and one had to file a notice of discontinuance and thereafter seek dismissal of the petition. It appears that for the purpose of the rule a letter will suffice. The rules do not require a person with whom the respondent is alleged to have committed adultery to be named unless the applicant believes that the Respondent is likely to object to the making of an order. This is unlikely to arise in practice as it is accepted good practice to obtain a signed admission statement from a prospective respondent prior to embarking on a Petition based upon adultery, any refusal to cooperate in that regard leading to a Petition being based upon unreasonable behaviour instead. Rule 7.10(2) provides that where an applicant alleges that the other party to the marriage has committed adultery with a named individual, then the person so named will automatically be made co-respondent unless the court otherwise directs. Rule 7.10(4) goes even further and states that where an application for a matrimonial or civil partnership order alleges that the other party has formed an improper association with a named individual, then the court may also direct that that named person be made co-respondent.
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It is clear from rule 7.10(5) that the court will usually direct party status unless the proceedings are not defended. The clear emphasis and encouragement therefore is to lean away from naming such a party so as to avoid future delay and unnecessary complexity. Indeed, the practice direction supplementing Part 7 contains further dissuasion against naming alleged adulterers (PD 7A, para.2.1) and even in cases where ‘an improper association’ is alleged, such person should not be so named, unless it is likely that the proceedings will be defended. Rule 7.12 sets out the procedure in so far as the respondent, and if relevant, corespondent is concerned when receiving an application for a matrimonial or civil partnership order. In essence, they must file an acknowledgement of service and set out whether or not they intend to defend the proceedings. Rule 7.12(8) provides that where a respondent wishes to oppose the making of an order he or she must file and serve an answer (Form D8B) within 21 days beginning with the date by which the acknowledgement of service is required to be filed. The form of answer is set out in PD 5A. After the expiry of that period an application for extension of time will be needed (utilising the Part 18 procedure (Form D11)) although, dependent upon the extent of the delay and the stage reached within the proceedings, the court may well grant such an application of its own initiative. A respondent to proceedings who wishes to make an application themselves for a matrimonial order must now file their own application (either alongside an answer or as a stand-alone application) within the same proceedings and can no longer issue a separate application (rule 7.14). (Note the abandonment of the terms ‘crosspetition’ ‘reply’ and ‘supplemental petition’ thus making for a simpler procedure.) Amendments can be made to an application or answer at any time before the application for the decree nisi is made (rule 7.13). Once, however, an application for a decree nisi or conditional order is made pursuant to rule 7.19 permission of the court will be required. Note also that where an answer is filed the applicant will only be able to amend their application either by seeking the court’s permission or if the respondent consents. The Respondent on the other hand is able to amend their own answer at any time without seeking such permission or consent right up until the time that the applicant applies for the decree nisi (r 7.13(1) Any application to amend will be made pursuant to the Part 18 procedure (Form D11) and the proposed amended document filed with it (PD 7A paras 5.2 & 5.3) 90
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Generally such amendments will normally be allowed subject to the applicant bearing the costs of and occasioned by any such amendment although if an application has to be made in a situation where the other party unreasonably refuses to give their consent then the costs of such an application may well fall on the respondent (La Chemise Lacoste SA v Sketchers USA Ltd (2006) EWHC Civ 3642) If, by virtue of the proposed amendment, a party previously named in an application for a matrimonial order based upon adultery, or indeed made a party by virtue of an allegation of having an ‘improper association’, is no longer cited then the court can direct under rule 7.13(6) that they cease to be a party. There is no longer provision in the Family Procedure Rules however for supplemental petitions and this is an important procedural change from the old rules. Rule 7.15 sets out the procedural requirements where requests are made for clarification and further information as to the contents of an application or answer the wording for which is almost identical to CPR 18.1. It is further supplemented by para.6 of the corresponding PD 7A which provides that before making such an application a written request for clarification should be sought first. Such request will need to be in the format of a questionnaire in that it must be in a separate document or letter which is dated and signed, contain no other subject matter apart from the request, make clear on the face of it that it is a request for information pursuant to rule 7.15 and specify a date (which of course must be reasonable) by which a response should be provided. The request must be concise and confined to matters which are reasonably necessary and proportionate to enable the requesting party to prepare their own case or understand the other party’s case. The reply itself should also follow the same format, that is, it should be contained in a separate document or letter which must be dated and signed, contain no other subject matter and make clear that it is a reply to a rule 7.15 request (rather curiously there is no requirement for such reply to be supported by a statement of truth unlike that with its CPR equivalent) The reply must repeat each request and provide the corresponding response to it (much in the same way as a financial questionnaire). Any objections to providing a response or inability to respond must also be dealt with together with reasons which, the author suggests, should be dealt with in the response document itself for ease of reference. Any application will need to be made pursuant to the Part 18 procedure (Form D11)
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3.8.2 Procedure for determining applications for a matrimonial or civil partnership order This procedure is regulated by FPR 2010, rules 7.16–7.27(Chapter 3) the main procedural aspects covered being:
•
Application for decree nisi or conditional order (note the change in
terminology from the former ‘request for directions for trial’)(r 7.19)
•
Directions for unopposed hearings (r 7.20(2))
•
Directions for opposed hearings (r 7.20(4))
•
Case management hearings (r 7.22)
Rule 7.16 sets out the general rule that hearings in relation to matrimonial and civil partnership proceedings will normally be heard in public subject to various exceptions contained in rule 7.16(3). This must be contrasted with rule 27.10(1) where the converse applies. Rules 7.19 and 7.20 set out the procedure for applying for a decree nisi, judicial separation, separation order or conditional order which is almost identical to the previous procedural requirements save that a statement in support is now required to be verified by a statement of truth . However, the contents are as before (see rule 7.19(4)) save that the new form (D80A – D80G) specifies in more detail the information that is required and now omits all reference to children of the family. Note that this applies only to unopposed cases and can be made not only by the applicant to a matrimonial order but by the other party as well (after the time for filing an answer has expired), which is an innovation to the rules and one which applicants will need to be made fully aware of. Thus the applicant is now no longer fully in control of the proceedings and the respondent can prevent delay and procrastination by applying himself or herself (rule 7.19(2) (b)). The statement under r 7.19 should:
•
state whether there have been any changes in the information given in
the application.
•
confirm, subject to any changes, that the contents of the application are
true, and
•
where the acknowledgement of service has been signed by the other
party, confirm that party’s signature on the acknowledgement of service.
Under rule 7.20 the court has to be satisfied that the applicant has proved the
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contents of their application. The rule also makes provision for access to documents following the making of the decree. If the court is not satisfied as to such entitlement it can request the provision of further information (to be verified by a statement of truth if necessary) or list the matter for a case management hearing. It is suggested that in practice the provision of further information will be sought first. In the event that the court remains dissatisfied the only recourse would be for the matter to be listed for a hearing to determine the proceedings. If costs are applied for the court has two choices:
•
if satisfied, certify the applicant is so entitled; or
•
if not so satisfied, make no such direction.
The provision for the listing of the issue as to costs to be determined on the occasion of the pronouncement of the matrimonial order is preserved by rule 7.21(2). Any party wishing to attend court for the purposes of opposing or applying for costs must now, not less than two days before the hearing, serve on the other party written notice of their intention to do so thus filling a lacuna in the previous rules. If such notice is not provided then the rules provide that the party is not entitled to be heard (rule 7.21(2)). Accordingly, in cases where, for example, the costs of the proceedings are in dispute and an attendance is required to dispute the issue, solicitors will need to advise the other party accordingly. If notice is not so given, then the question will be whether or not the court has discretion to proceed and determine any issue or whether an adjournment should be ordered so that effective notice can be given. Hopefully, good sense will prevail and a proportionate response given in line with the overriding objective. In opposed cases, the court will list a case management hearing (CMH) (r 7.20(4)), the procedural considerations for which are dealt with in rule 7.22. In essence the duties of the court on the occasion of such a hearing will consist of the following:
1.
Place of hearing
2.
Timetabling for filing and service of evidence
3.
Disclosure and Inspection
4.
Conduct of the final hearing
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Note, in particular, the footnote to rule 7.22 which draws attention to the court’s powers to encourage the parties to use NCDR in line with the ethos set out in Part 3. It will be noted that the procedural aspects in relation to defended cases are much less complex than previously the case. The overriding objective and the expectation that the court will manage these cases at an initial CMH means that if an application is contested then the proceedings will be tightly controlled. The provisions relating to disclosure and inspection in defended cases are supported by PD 7A, para.7, which sets out the duty of making a reasonable search for documents which are required to be disclosed. As with disclosure generally, what is reasonable will, of course, be measured in accordance with the individual facts of each case and the overriding principle of proportionality. Disclosure is to be by way of list, which must comply with the requirements set out in PD 7A, para.7.3 and contain the statement which is set out in para.7.5. Once disclosure is ordered there is a continuing duty of disclosure until the cessation of the proceedings. Any additional documents coming to light will need to be incorporated in a supplemental list. The issue of privilege or other reasons for opposing such disclosure must be set out in the disclosure statement itself. Hearings for the pronouncement of the decree, or final hearings in opposed cases, are to be held in public. Under FPR 2010, rule 7.16 such a hearing may only be held in private if:
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to
personal financial matters ) and publicity would damage that
confidentiality;
(d) a private hearing is necessary to protect the interests of any child or
protected party;
(e) it is a hearing of an application made without notice and it would be
unjust to any respondent for there to be a public hearing; or
the court considers this to be necessary, in the interests of justice.
(f)
The court may also order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary to protect the interests of that party or witness.
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Rule 7.26 (which is supplemented by PD 7B) deals with medical examinations in nullity proceedings (and only applies to marriages of opposite sex couples) Determination as to whether or not a medical examiner is appointed will be by way of an application under the part 18 procedure. Such an appointment will only be directed where it is necessary for the proper disposal of the case and will not normally be made where proceedings are undefended (PD 7B para 1.1) Any report ordered must comply with part 25 and the attendance of any examiner at a final hearing must be dealt with at a case management hearing (PD 7B para 1.4) Rule 7.27 sets out the procedure where the court is considering imposing a stay on the proceedings where there are jurisdictional issues. In essence the court will stay the proceedings and fix a hearing on notice to determine the matter.
3.8.3 Orders of the court Orders of the court are regulated by FPR 2010, rules 7.28–7.36. Rule 7.28 deals with the procedure for the setting aside (rescission) of the decree either by consent or by application pursuant to the part 18 procedure. Rule 7.31 provides the procedure for applications to prevent the conditional order being made final or the decree nisi being made absolute either by the Queen’s Proctor or any other person. Any such application must be made pursuant to the FPR 2010, Part 18 procedure. However, it is worth noting that pursuant to Miller Smith v. Miller Smith (No. 2) [2009] EWHC 3623 whilst there is such a power, such power should only be exercised in special or exceptional circumstances. Rule 7.32 sets out the procedure for the applicant when applying for a final order or decree absolute. The procedure is largely unchanged, including the provision for making an application where more than 12 months have expired since the decree or order was made (rule 7.32 (3)(4)) However it is no longer a requirement to consider compliance with S 41(1) MCA 1973 or 63 (1) CPA 2004 as both have now been repealed. In undefended cases, where expedition of the decree absolute or final order is required, the Part 18 procedure must be used, otherwise see Paragraph 8 of PD 7A for guidance about expediting the Decree Absolute or Final Order.
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The procedure itself differs between the situation where the need for expedition is known before the granting of the Decree (para 8.1) and where it is discovered subsequently (paras 8.2 & 8.4) Rule 7.33 sets out the procedure for applying for a final order or decree absolute by the spouse against whom such decree or order was made. The application must again follow the Part 18 procedure (Form D11). Note rules 7.34 and 7.35 which state that the precise time when the decree nisi was made absolute or the conditional order was made final must be set out on the face of the document.
3.9 Part 8: Procedure for miscellaneous applications As part of the drive for a unified set of procedures and unification of the rules, Part 8 sets out the procedural requirements for various types of applications, more particularly, applications under the Married Women’s Property Act 1882, s.17 and their civil partnership equivalent; declarations of parentage and marital status pursuant to FLA 1986, ss.55 and 55A; applications for financial provision after an overseas divorce under MFPA 1984 s 13 or its civil partnership equivalent (which builds upon guidance set out in Agbaje v. Akinnoye-Agbaje [2010] UKSC 13) and applications for a transfer of tenancy order pursuant to FLA 1996 s 53 and Sched.7. This Part derives predominantly from Part III of FPR 1991 and rationalises the previous rules so that the various forms of relief available under the listed enactments shall generally follow what is known as ‘the alternative procedure’. The rules governing the procedure are set out in Part 19 save for Chapters 4 (applications under the Married Women’s Property Act 1882 within proceedings for a financial order) and 6 (applications for permission to apply for a financial remedy after an overseas divorce) which follow the Part 18 procedure. A new Practice Direction 8A will set out the particular location where the applications governed by Part 8 should be made.
3.9.1 Declarations (Chapter 5 Rules 8.18 – 8.22) This chapter covers the following:
•
Declarations as to marital/civil partnership status;
•
Declarations of parentage;
•
Declarations of legitimacy or legitimation;
•
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The part 19 procedure applies the respondents to which are set out in rule 8.20 namely:
•
The person whose parentage is in issue; and
•
Any person who is or is alleged to be the parent of the person whose
parentage is in issue (save and except where that person is the applicant
themselves) The application form (C63, C64, C65 and D70 as appropriate) will need to set out:
•
The issue to be decided;
•
The enactment under which the application is made;
•
The basis of the application;
•
Details of any representative capacity in which the application is made
and of any representative capacity in which a respondent might appear;
Details of any directions sought including any other persons who should be
•
given party status or served with notice of the proceedings under rule
8.20(4) and the role of the Attorney General under rule 8.21.
The acknowledgement of service must be accompanied by any evidence upon which the respondent wishes to rely if they wish to take part in the proceedings. As far as post rules case law goes reference must be had to Re F (Paternity: Registration) (2011) EWCA Civ 1765 where, in proceedings for a declaration of parentage, an order whereby registration of the biological father was delayed for four years was held to be unlawful because it was incompatible with r.8.22 (2) and compromised the accuracy of public records. The 21 day registration rule as set out in rule 8.22(2) therefore should be treated as the norm and any divergence should be, if not exceptional, at least justified by exceptional circumstances.
3.9.2 Application for permission to apply for a financial remedy after overseas proceedings (Chapter 6 Rules 8.23 – 8.28)) Applications for permission to apply for financial relief after an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984 is now no longer confined to the High Court. Application for permission must be made in accordance with the Part 18 procedure (r 8.24(1))
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However, there is now a change from the old rules (FPR 1991 r 3.17(1)) whereby previously it was the case that such applications were generally listed without notice. Under the FPR 2010 good reasons will need to be provided as to why the application for permission needs to proceed without notice (r 8.25) for which note the provisions of rules 18.10(3) and 18.11 (See Agbaje v. Akinnoye-Agbaje [2010] UKSC 13; Schofield v Schofield (2011) EWCA Civ 174) Traversa v Freddi (2011) EWCA Civ 81 however (see in particular paras 56 - 58 relating to the new rules) suggests that the previous practice of dealing with the permission application without notice should still continue given the fact that rule 8.26(b) talks of the court giving notice of the application to the Applicant only. However it may also be suggested by way of interpretation that it is then for the applicant to give notice by way of service upon the Respondent as opposed to the Court. The Traversa decision also suggests that previous case law relating to setting aside applications will still apply under the new rules; namely the requirement of having to establish a ‘knock – out” blow and that ordinarily applications to set aside, if not actually dismissed there and then, should be adjourned to be heard at the same time as the substantive application. Finally it is proposed that if such a hearing seeking permission is listed on notice or, in the alternative, an application is made seeking that such permission as is granted without notice to be set aside, then ordinarily the hearing should be listed for 30 or, at most, 60 minutes. If the application for permission was granted by a judge in the High Court to bring proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) and Sched.7 to the Civil Partnership Act 2004 (CPA 2004), then the High Court may then direct that the substantive application be dealt with by a district judge in the principal registry of the Family Division (FPR 2010, rules 8.26 and 8.28). Very often, the issue that requires High Court judge involvement is the initial application for permission to bring proceedings following overseas proceedings. Once permission is granted, the substantive application will now be dealt with procedurally in the same way as any other application for a financial remedy under FPR 2010 Part 9 subject to any case specific case management decisions. A problem regularly occurring under the previous rules is that where a pension sharing order is made in an overseas jurisdiction relating to a pension based in this jurisdiction the pension provider in the UK would not recognise the foreign pension sharing order and therefore a reciprocal order would be necessary under MFPA 1984, Part III. Such applications were normally made by consent.
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The 2010 rules now provide that where both the application for permission and substantive application proceed with the full co-operation of the parties then the matter may be dealt with at county court level if evidence of consent is filed with the application.
3.9.3 Transfer of tenancy under Schedule 7 to FLA 1986 (Chapter 7 Rules 8.29 – 8.34)) This rule regulates the procedure for transfer of tenancies on divorce or the separation of cohabitants. Where a free-standing application for a transfer of tenancy under FLA 1996, Sched.7 is made the Part 19 procedure must be followed unless the application is contained in an application for ancillary relief, in which case the Part 9 procedure will apply.
3.10 Part 9: Applications for financial remedy Part 9 and the procedures set out within it (which are derived from FPR 1991, Part II) provides a unified procedure for most financial applications and now apply to many more applications for a financial remedy involving a wide ambit of discretion than previously. This enables such proceedings to benefit from tighter case management, the more widespread use of Form Es and FDR appointments for the purposes of discussion and negotiation at which parties must use their best endeavours to reach agreement on matters at issue between them. Part 9 is divided into various chapters and is supported by PD 9A. The Pre-action Protocol The pre-application protocol, which is annexed to the practice direction, outlines the steps that a party should take prior to commencing an application which the court will expect the parties to have complied with, any breach of which may be met by a costs sanction. The rules clearly give the protocol more force than it had before particularly when one has regard to para 3.4 of PD 9A which states that “any breach of this practice direction or the pre-action protocol annexed to it will be taken into account by the Court when deciding whether to depart from the general rule as to costs.” The protocol is also different from the one produced by Resolution and the Family Law Panel.
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The aim of the pre-application protocol is to assist the parties to resolve their differences, or at least narrow the issues, and to ensure that applications are resolved as speedily as possible without incurring unreasonable costs and in accordance with the overriding objective and in particular the maxim of proportionality. “It is unacceptable for the costs of any case to be disproportionate to the financial value of the subject matter of the dispute” (Paragraph 9 – note the strength of language used and the clear warning as to costs consequences set out in Paragraph 10 when having regard to any non-compliance with the protocol) Amongst other things, the protocol cautions against automatic pre-action disclosure so as to avoid excessive and uncontrolled costs and delay. Such pre-action disclosure and inspection is only to be encouraged where both parties agree and where disclosure is unlikely to be an issue. It must also be dealt with cost-effectively and in line with the over-riding objective: “If parties carry out voluntary disclosure before the issue of proceedings the parties should exchange schedule of assets, income, liabilities and other material facts, using the financial statement as a guide to the format of the disclosure. Documents should only be disclosed to the extent that they are required by the financial statement. Excessive or disproportionate costs should not be incurred.”
(PD 9A para 12) Wherever possible, valuations should be by way of a joint single valuer. Furthermore, 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. This, of course, is now enshrined in FPR 2010, Part 3 as an application for a financial remedy falls within the definition of relevant family proceedings for the purposes of the mediation information and assessment pre-action protocol at PD 3A and thus before an application to the court is made an applicant should first contact a family mediator to arrange to attend an information meeting about family mediation and other forms of alternative dispute resolution. There is an emphasis in the protocol on a conciliatory approach. The tone of the initial pre-action letter and subsequent correspondence is important and should focus on the clarification of applications and the identification of issues and their resolution. Making an application to the court should not be regarded as a hostile step or last resort, rather as a way of commencing the court timetable and exerting control. (Paragraphs 2 & 4)
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The protocol also sets out a number of uncontroversial principles which should be adhered to in accordance with, and supplemental to, the overriding objective with the view to ensuring that applications are resolved justly and as speedily as possible without incurring unreasonable costs: “The needs of any children should be addressed and safeguarded. The procedures which it is appropriate to follow should be conducted with minimum distress to the parties and in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances.”
Finally, full and frank disclosure of all material facts, documents and other relevant information is promoted (an ongoing duty which applies throughout the life of the proceedings) for which Solicitors are obliged to inform their clients together with the consequences for any breach, as is proportionality, avoiding trial by correspondence and discouraging protracted correspondence and correspondence which raises irrelevant issues or which may promote entrenched polarised or hostile positions. Practitioners should, moreover, consider the impact their correspondence might have on the recipient and in particular the parties themselves. The instantaneousness of emails themselves in particular merits a ‘government health warning’. Applications for a Financial Order The rules themselves distinguish between applications for “financial orders” and all other “financial remedies”. The definition of “Financial remedies” not only encompasses “financial orders” but other financial applications such as applications pursuant to MCA 1973 s 10(2) or CPA 2004 s 48(2) (consideration of financial position after divorce) s 27 (failure to maintain) s 35 (alteration of a maintenance agreement) MFPA 1984, Part III (relief after overseas divorce); CA 1989, s 15 and Sched.1 (orders for children); and DPMCA 1978, Part 1 (FPR r 2.3) or CPA 2004 Sch 6. Rules 9.4–9.9 cover applications for a ‘financial order’ made within proceedings for a matrimonial order (defined in rule 2.3) and broadly encompass the previous orders applied for as part and parcel of an old ancillary relief claim. They include applications pursuant to MCA 1973, ss.27, 35 & s.37 as well as interim orders, for example, maintenance pending suit and their respective civil partnership equivalents (rule 9.15(5) (b) and (7) (a)). Note, applications under the Married Women’s Property Act 1882, Trusts of Land and Appointment of Trustees Act 1996, Inheritance (Provision for Family and Dependants) Act 1975, Section 13 of the Matrimonial and Family Proceedings Act 1984 and a transfer of tenancy under Part IV of the Family Law Act 1996 are not covered by this rule as they fall outside the definition of a ‘financial remedy’ or ‘financial order’ as do
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proceedings for variation or enforcement of periodical payments orders made in the magistrates court (rule 2.3(1)). Applications for interim orders (including maintenance pending suit and orders for payment in respect of legal services) and an order preventing a disposition are to be made pursuant to the Part 18 procedure. Following on from this is the inclusion of a section specifically dealing with ‘interim orders’ at rule 9.7. Despite the provisions of FPR 9.7(1) (e) the court has no power to make an interim order which it is in itself prevented from so doing pursuant to primary legislation such as an order for an interim lump sum (MCA 1973 s 23; Wicks v Wicks (1998) 1 FLR 470) In so far as an application for an interim order is concerned, where such an application is made before a party has filed his or her financial statement, the evidence in support must explain why such an order is necessary and provide up-todate information about the party’s financial circumstances. Such applications can be made without notice, however this does not apply where the interim order sought relates to any of the following applications:
•
Maintenance pending Suit
•
Maintenance pending outcome of proceedings
•
Interim periodical payments
•
Interim Variation orders
Unless the Respondent to the application has filed their own financial statement they must, at least 7 days before the hearing, file and serve a statement of their means (r 9.7(4)) Also worth a mention is the procedure for obtaining a corresponding order (a request for a periodical payments order at the same rate as an order for maintenance pending suit). This has been altered so that the procedure in Part 18 must be used, which in turn is based on CPR Part 23 (r 9.8) Any other application not listed will be covered by the procedure set out in Part 19 of the FPR 2010. Applications for Financial Remedies for Children Rule 9.10 sets out the categories of people who may apply for a financial remedy in respect of a child. This also includes the Child themselves who may or may not require permission depending upon whether or not the conditions as set out in Rule 9.10 (1A) apply.
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Note, a child aged over 16 for whose benefit a maintenance order has been made under the DPMCA 1978 will not need permission to apply to vary the order Rule 9.11 specifically empowers the court to direct that where the application is for a variation of settlement the court must, unless it is satisfied that the proposed variation does not adversely affect the rights of the child concerned, direct that the child be separately represented. In so far as any other financial remedy is concerned the court may direct that the child be separately represented; this provision now also applies to the magistrates’ court. Curiously the rule only refers to ‘representation’ and makes no reference to ‘joinder’. This is particularly relevant in so far as applications under CA 1989, Sched.1 are concerned in light of the sentiments expressed in Walker v. Jeffries; Re S (a child) [2006] EWCA Civ 479 and Morgan v. Hill [2007] 1 FLR 1480. Indeed, in an application for a financial remedy which includes an application for a variation of settlement, the court has to be satisfied that the proposed variation does not affect the rights or interests of a child. If it is not so satisfied the court must direct that the child be separately represented. Procedure after filing an application (Rules 9.12 – 9.17 – Chapter 4) The procedure set out in the old 1991 rules with regard to FDRs in so far as ancillary relief proceedings are concerned remains intact and is now set out in FPR 2010, rules 9.12–9.17(Chapter 4). However, as indicated previously, this procedure now applies to many more types of financial proceedings than just ‘ancillary relief’. To issue an application for a Financial Order one uses Form A; for a financial remedy (other than a financial order) one uses Form A1 and for financial remedy proceedings to which Rule 9.18 applies (Chapter 5) we have Form A2. Form E (applies to applications for a Financial Order) a new Form E1 (applies for applications for a financial remedy) the former of which, although broadly the same as the previous version, has a better layout and a newly devised Form E2 to be used for financial remedy proceedings within proceedings for which Rule 9.18 (Chapter 5) applies. The list of the various enclosures to Form E are also broadly the same as previously and include any documents necessary to explain or clarify any of the information contained within the financial statement (rule 9.14(2)(b)(ii)); however, the rule now provides for any Pension Protection Fund (PPF) information to be provided in addition to the usual documentation. Up until the filing of the Form E the duty of disclosure does not arise (Imerman v
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Tchenguiz and Others (2010) EWCA Civ 908) (although see the protocol) and, save as to the documents to be included within the Form E, disclosure or inspection of additional documents at this stage is not permitted other than in relation to those authorised by questionnaire. Where a party is unavoidably prevented from filing any document required they must, at the earliest opportunity, serve a copy of that document on the other party and file the same with the court together with an explanation of the reason for their failure to send it with their financial statement. The detailed provisions contained in PD 22A (Written Evidence) regulating the collation and pagination of documents is also applicable to Forms E, E1 and E2. In particular note the following: 1.
Photocopies may be exhibited as long as the originals are made available
for inspection by the other party before the hearing and by the court at
the hearing.
2.
Court documents must not be exhibited (they prove themselves).
3.
Where an exhibit contains more than one document, a front page should be
attached setting out a list of the documents contained in the exhibit. The list
should contain the dates of the documents.
4.
An exhibit with more than one document should be fastened securely in a way
that does not hinder the reading of documents – and must not be stapled.
5.
The pages in the bundle should be numbered consecutively at bottom centre.
6.
Every page should be legible; typed pages of illegible documents should be
prefaced with ‘a’ when numbering.
7.
Where affidavits/statements and exhibits have become numerous, they should
be put in separate bundles and numbered consecutively throughout.
8.
Copies of individual letters should be collected together and exhibited in a
bundle or bundles and arranged in chronological order with the earliest at
the top.
9.
When a bundle of correspondence is exhibited, the exhibit should have a front
page attached stating that the bundle consists of original letters and copies.
10. Where the service of exhibits or copies of exhibits is difficult or impracticable,
the directions of the court should be sought for the purposes of making the
necessary arrangements for bringing the exhibits to the attention of the other
parties and the custody of those documents pending trial.
11. Where the ‘maker’ files more than one statement/affidavit to which there
are exhibits in the same proceedings, then the number of the exhibits should run
consecutively throughout and not start again with each statement/affidavit.
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Although Form E has a schedule of documents comprising a list of documents attached it should be noted that it does not provide for the dates of the documents to be identified although, where relevant, solicitors may wish to consider incorporating this none the less. Any breach of the above provisions will be taken into account by the court when deciding whether or not to depart from the general rule on costs applicable to such proceedings, subject to any explanation given for a failure to comply (rule 9.15(6)) although before doing this the issue as to proportionality of sanction ought properly to be borne in mind. Flexibility regarding service of an application for a financial remedy is now provided for by the option for service by the applicant as opposed to the court (rule 9.12(2)). Certificates of service must be filed to prove service of Form A, and also to substantiate the persons upon whom the application has been so served. Where a property adjustment order is sought copies of the application must also be served on any mortgagee (r 9.13(3)) As before, the date fixed for the first appointment, and indeed any subsequent appointment, must not be adjourned without the courts express permission. If adjourned a new date must be fixed (r 9.12(3)) Again, no disclosure or inspection of documentation is allowed between the issue of proceedings and the first appointment. Not less than 35 days before the FDA both parties must simultaneously exchange and file at court their respective Form E’s (FPR 9.14(1)) 14 days prior to the FDA the Applicant must file and serve confirmation of all those persons who have been served pursuant to r 9.13 (1) – (3) or that there are no other persons who must be so served (r 9.14(6)) Persons so served under rule 9.13 are not automatically joined but may, if they choose, file evidence in response to the application, apply to be joined as a party or seek to intervene, or participate as a witness and be represented. Furthermore, any person so served may make a request to the court for a copy of the applicant’s financial statement where, upon receipt, they can file their own statement in response (DR v GR & Others (Financial Remedy Variation of Overseas Trust) (2013) 1196 Fam) 14 days prior to the FDA each party must also file and serve the following:
•
A concise statement of issues.
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•
A Chronology.
•
A questionnaire as to further information and documents required from
the other party pursuant to r 9.14(5) (c) (which must be framed by
reference to the statement of issues), or a statement that no such
information or documentation is required.
A notice stating whether that party will be in the position of being able to
•
proceed with an FDR (r 9.14(5)) (Note that the Court may treat the FDA as
an FDR notwithstanding this in any event pursuant to FPR 9.15(7))
In addition to the requirements of rule 9.14(5) the parties are also under a duty to agree and file the following (PD 9A, para.4.1):
•
a case summary;
•
a detailed schedule of assets; and
•
a draft of the directions sought and, where relevant, the identity of any
expert to be instructed.
In so far as expert evidence is concerned, reference must be had to PD 25D which provides that ‘so far as appropriate’ certain preliminary enquiries must be made of the proposed expert and the service, by 11 am on the eve of the FDA, of a ‘written proposal’ setting out the detail of the instruction and a draft order setting out the detail of the order. Where the details of a proposed expert are not sent in advance of the First Directions Appointment (FDA) hearing, such details should be made available at the hearing itself. Responses to requests for information and replies to financial questionnaires must now be verified by a statement of truth. PD 9A, para.5.2 in particular provides that replies to such questionnaires need not be filed with the court unless directed otherwise. Intact from the previous rules is the requirement that both parties must attend the FDA and the FDR appointments unless again the court directs otherwise. It is also a requirement that costs estimates are to be provided at each hearing. It is suggested that some FDAs may be more amenable to be conducted by way of a telephone hearing, particularly where it is unlikely to be conducted as an FDR. However, due to its nature, it is envisaged that an effective FDR hearing will always require an attendance at court by the parties and thus will not be suitable to be conducted as a telephone hearing.
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The court can also direct at the FDA that the case be adjourned if it considers that NCDR is appropriate (Part 3). As before, the FDA must be conducted with the objective of defining the issues and saving costs. (R 9.15(1)) On the occasion of the FDA the court will also determine and give directions on the following:
•
The extent to which any questions must be answered and what
documents produced.
•
The valuation of assets.
•
The obtaining and exchange of expert evidence.
•
The evidence to be adduced by each party including further
chronologies or schedules as appropriate.
The filing and service of a Pension Inquiry Form or Pension Protection Fund
•
Inquiry form if applicable. (Form P) (r 9.15(7)(c))
Note that where expert evidence is directed the letter of instruction must be sent within 5 business days of the hearing (PD 25A para 4.5) After the FDA, permission from the court will be required for any further disclosure sought (r 9.16) As for subsequent FDR hearings and the conduct of the same, practitioners must take careful note of the provisions of paras.6.1–6.3 and 6.5 of PD 9A. Failure to do so may well be visited by a costs sanction (PD 9A, para.3.4). In essence an FDR is a “meeting held for the purpose of discussion and negotiation” and will be fixed on the occasion of the FDA although there is no longer a presumption that this should be so in every case (FPR r 9.15(5)) The FDR appointment itself is regulated by rule 9.17. Note the provisions as before regarding the filing of all offers and counter-offers and the duty to make open proposals prior to the final hearing which of course must be returned at the conclusion of the FDR and not retained on the Court file (rule 2.61E) In particular, note that the parties are expected to attend, negotiate and consider all offers made, giving them proper consideration and “must use their best endeavours to reach agreement on the matters in issue between them” approaching such hearing “openly and without reserve.” This is backed up by paragraph 6.2 of PD 9A. Accordingly, it is worth noting and advising clients, where relevant, that anything said
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or any admission made at an FDR appointment will not be admissible in evidence, except at a trial of a person for an offence committed at the appointment or, in very exceptional circumstances, as indicated in Re D (minors) (Conciliation: Disclosure of Information) [1993] Fam 231. Having said that, if a party has been deliberately untruthful, criminal proceedings can be brought against them under the Fraud Act 2006 in addition to proceedings for perjury if they have made a false statement in a document which has been confirmed by an affidavit or verified by a Statement of Truth. There is a corresponding duty on the legal representatives who attend such hearings to have full knowledge of the case in order to facilitate its stated aims (FPR r 9.17(6)) As before, the judge hearing the FDR must play no further part in the application other than to conduct any further FDR hearing, make a consent order or deal with further directions. (FPR 9.17(2)) (See Myerson v Myerson (2008) EWCA Civ 1376) Procedure after filing particular applications (Rules 9.18 – 9.23 – Chapter 5) Rules 9.18– 9.23 (Chapter 5) sets out a simplified procedure, with abbreviated timescales, for parties seeking to apply for the following financial remedies:
•
An Application under the Domestic Proceedings and Magistrates Courts
Act 1978
•
An Application under Schedule 6 to the Civil Partnership Act 2004
•
An Application under Schedule 1 of the Children Act 1989
•
An Application for a variation of an order for a financial order
•
Applications under Article 56 of the Maintenance Regulation and
applications under Article 10 of the 2007 Hague Convention.
On issue of an application for an order, the court will fix a hearing date not less than four weeks and not more than eight weeks after the date of filing of the application and at the same time send a blank simplified form of Financial Statement (Form E2) to both parties to complete. Again, there is provision for the applicant to serve the application on the respondent. It will be noted that this provides for a substantially shorter timescale than that of its county court equivalent (a 50 per cent reduction) and, unlike the position in the county court, it is the court that sends out a blank Financial Statement for completion by the parties rather than the onus being on the parties themselves to obtain this. The Financial Statement, which must be verified by a statement of truth (Form E2)
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must be filed and exchanged not more than 14 days after the date of issue of the application which, again, is a substantial reduction in timescale when compared to that of the county court equivalent which, of course, requires for exchange not less than 35 days before the first appointment. Rule 9.18A sets out what should happen if the applicant wishes to seek a direction from the Court that the procedure set out in Chapter 4 (rules 9.12 – 9.17) should apply instead (see the examples given in PD9A para 1.2) In such eventuality the application (which presumably will be on either Form A or A1 itself) must state that such a direction is sought and the reasons why. Under rule 9.18A (2), the court will determine whether the Chapter 4 or Chapter 5 procedure should be used ‘without notice to the parties and before the first hearing’, and the parties will be notified of its determination and any necessary consequential directions. Presumably either party will be able to apply to set aside that determination in accordance with FPR 4.3(5) of they so wish. Rule 9.19 sets out those matters that must be dealt with by the first hearing. On the occasion of the first hearing itself, if able to do so, the court may be able to determine the application, although it is more than likely that the court will direct further evidence, set a date for further directions or list the matter for a final hearing (rule 9.20). Under this procedure there is no FDR Hearing which for many will be seen as unattractive justifying an application under Rule 9.18A unless it is regarded as unlikely to be of benefit and that the more streamlined procedure is necessary to resolve the issues in accordance with the overriding objective. General Provisions Rule 9.24(2) provides that when the court makes an order for the sale or transfer of property it may also go on to order any party to deliver up to the purchaser, or any other person, possession of that property and/or the receipt of rents and profits arising from it. (Note there is no such power under the Matrimonial Causes Act of course to do so prior to a final order subject of course to the mechanism highlighted in Miller-Smith v Miller-Smith (2010) 1 FLR 1402 in utilising an application pursuant to the Trusts of Land and Appointment of Trustees Act 1996) Note also para.9.2 of PD 9A which discourages the use of orders for financial provision for a child expressed as payable to the child direct as opposed to a party
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for the benefit of child. The duty to make open proposals is contained in rule 9.28 along with the requirement for filing and serving a full and accurate estimate as to costs (Form H) (including sums paid on account of them) at each and every hearing and, in so far as the final hearing is concerned, a statement giving full particulars of all costs in respect of the proceedings which a party has incurred or expects to incur (Form H1) as set out in rule 9.27. PD 9A, para.8.1 deals with the subsequent withdrawal of an application under MCA 1973, s.10 (2) and CPA 2004, s.48 (2). Effectively such notice of withdrawal must be signed and can be filed and served without requiring the court’s permission. Once this has been done, a formal order dismissing or striking out the application is unnecessary. Consent Orders Rule 9.26 sets out the procedure in respect of dealing with consent orders which remains intact, namely: one application, two copies of the draft order in the terms sought, one endorsed with a statement signed by the respondent signifying their agreement and a statement of information in support of the consent order from both parties which in addition to being filed at court must now be served on the other party. Note the Statement of information form now requires rather more extensive information than its predecessor and must be verified by a statement of truth. (As to its specific requirements see PD 5A) It is also pertinent to note that the provisions require that the Applicant ‘must’ file a draft of the order sought (FPR 9.26 (1) (a)) to be approved which is a mandatory requirement not present in the previous rules (FPR 1992 r 2.61) It is therefore debatable as to whether or note the court can itself draft an agreed order in circumstances where there are two litigants in person before it who happen to have resolved matters at say FDR stage. It seems likely that in such circumstance matters will have to be adjourned to enable at least one of the parties to either seek legal assistance to perfect such an agreement or to have a go themselves – Resolution Precedents to the ready! Generally, consent orders may be endorsed by the solicitors for the parties (if on the record) or the parties themselves, unless they contain undertakings, in which case there must be a signature from the person giving the undertaking. However, when drafting a consent order with undertakings, due care and attention
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should be given to the provisions contained in FPR 2010, rule 12.33 (warning notices). The rules make it clear that attendance by the parties on a consent order dealing with a financial application is not necessary, unless the court directs otherwise (FPR 9.26(4)) However, where an application proceeds by consent, both parties must certify in writing that they have read the other’s statement of information (rule 9.26(2) and (3)) Where each party’s statement of information is contained in one form, it must be signed by both party’s to certify that they have read the contents of the others statement (r 9.26(2)) Where each party’s statement of information is contained in a separate form it must be signed by the other party to certify that they have read its contents (r 9.26(3)) This is an important addition as it enables the court to be satisfied that the parties have knowledge of each other’s means when agreeing to the terms sought, bearing in mind the obligation of full and frank disclosure, and is an added layer of protection for those representing them. These formalities may be dispensed with where matters are settled at a hearing (r 9.26(5)) As a side note, attention is also drawn to PD 18A, para.12. Note should also be made of Rule 9.26A which applies where a question as to jurisdiction arises under – (a) the 1968 Convention; (b) the 1988 Convention; (c) the Lugano Convention; or (d) the Maintenance Regulation. If at any time after the issue of the application it appears to the court that it does not, or may not have jurisdiction to hear that application under the regulations referred to above, and that it may be required to stay the proceedings or to decline jurisdiction, the court must – (a) stay the proceedings, and (b) fix a date for a hearing to determine jurisdiction or whether there should
be a stay or other order.
The court officer will then serve notice of the hearing on the parties to the
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proceedings and set out in writing the reasons for its decision and, where it makes a finding of fact, state such finding. The court may also, with the consent of all the parties, deal with any question as to the jurisdiction of the court, or as to whether the proceedings should be stayed, without a hearing. By Rule 9.26 B the court can direct a person to be added as a party to proceedings for a financial remedy if:
a)
desirable to enable the resolution of all matters in dispute within the
proceedings; or
b)
there is an issue between the person to be joined and an existing party
which is connected to the proceedings and it is desirable to add that
party so that the issue can be resolved. (See Fisher Meredith v JH and
PH (2012) EWHC 408 and Tchenguiz-Imerman v Imerman (2012) EWHC
4277 and the dicta in TL v ML (2005) EWHC 2860)
The discretion is a broad one as the terminology used is ‘desirable’ either in resolving all the matters in dispute within the proceedings or in resolving a dispute between a party and a third party where that dispute is connected to the main proceedings. Removal of a party similarly will be based on the ‘desirability’ test (rule 2.62B (2)) Once such a direction is made the court will then go on to give directions as to service of the Form A and “other relevant documents” on the new party along with consequential case management directions. An application for joining a new party must follow the part 18 procedure (unless otherwise directed) and be supported by evidence setting out the new party’s interest in or connection with the proceedings or, in the case of removal of a party, the reasons for removal. The court can also deal with such application of the court’s own initiative for which see FPR 4.3. Rule 9.26C makes provision for where an order made under section 1(4) or 4A of the Maintenance Enforcement Act 1991 provides for payments under a qualifying periodical maintenance order is to be made by a particular means. Rule 9.26D deals with the notification requirements when maintenance payments under the various orders set out in rule 9.26D (4)(a) are made through the Court and the court receives notification that the recipient to the award has subsequently remarried or has entered into a civil partnership.
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Rule 9.26E deals with issues of enforcement and apportionment where there is more than one periodical payments order in existence. Rule 35.2 deals with applications for consent orders where the parties wish to have the content of a written mediation agreement, to which the Mediation Directive applies, converted into an agreed order. Note also the provisions of rules 9.32 and 9.41 where the consent order makes provision for a pension sharing or pension compensation sharing order and the corresponding rules (9.34 and 9.43) in relation to pension attachment and pension compensation attachment orders. Where a pension sharing order or pension sharing compensation order is agreed and no application for a financial order has been served on the pension trustees or the board and the information at Part C of Form P has not been provided, the party with pension rights must ask the pension trustees to provide the information at Section C of the Pension Enquiry Form (Form P) (Section C of Form P requires disclosure of such information as required pursuant to the Pensions on Divorce etc. (Provision of Information) Regulations 2000, SI 2000/1048). This provision is intended to demonstrate to the court that there is no obstacle to the agreed order being made. Note that it is not necessary to seek or indeed obtain the approval of the pension scheme or the PPF to the order itself. Upon receipt of that information it must be sent to the other party. Where the parties have agreed the terms of an order which includes provision for a pension attachment or pension compensation attachment order, and the trustees of the pension have not been served with the application, the parties must serve on the trustees:
1.
a copy of the application for a consent order;
2.
a draft of the proposed order;
3.
the information set out in rules 9.33 – 9.34 or rules 9.42 – 9.43 as the case
might be. With one important exception, no consent order can be made unless 21 days have passed since the date of service of the application for the consent order and no objection has been received or the court has considered an objection and in order to consider that objection directions have been given. This provision however does not apply where the PPF is involved. The reason for this is that pension schemes are given the opportunity to object to an attachment order being made if, for example, they are facing financial difficulties which might mean that they would be unable to comply with their obligations under 114
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the order. This of course is not an issue for the PPF, nor is it in relation to sharing orders, as these do not impose ongoing obligations on the pension fund whereas of course attachment orders do. As with previous pension sharing and pension attachment orders, the body of the consent order must state that there is to be provision by way of pension sharing or pension attachment compensation orders and refer to the pension annex attached to the order (r 9.35) There must be one annex for each pension that is to be shared/attached. Note the two forms introduced by r 9.44:
•
Pension Compensation Sharing Annex (Form PPF1)
•
Pension Compensation Attachment Annex (Form PPF2)
Finally, when making, varying or discharging a pension compensation sharing or attachment order the court must send, or direct one of the parties to send, to the PPF the relevant decree together with a copy of the relevant order and annex within 7 days of it being made or the date of final decree (whichever is the later) (r 9.45) Pensions As far as pensions themselves are concerned, rule 9.30 places an obligation on the party concerned to obtain and serve information relating to the valuation of the pension rights or benefits. Dealing with pensions generally, there are lengthy provisions concerning the formalities of pension orders and their implementation. Rules 9.29 – 9.37 govern the procedure for pension sharing and pension attachment including where the Pension Protection Fund has become involved. Rules 9.38 – 9.45 governs the procedure where the Pension Protection Fund has already assumed responsibility for it. The rules in particular outline the requirements in relation to service (rrs 9.31, 9.33, 9.35 & 9.36) and the obtaining of a valuation (r 9.30). The rules also reflect the changes brought about by the Pensions Act 2008 which enables the court (as from 6th April 2011) to make pension compensation sharing and attachment orders in relation to those schemes where the Pension Protection Fund (PPF) is involved with the pension scheme. In essence the Pensions Act 2008 makes provision for a compensation scheme to pension members whose occupational pension schemes cannot afford to cover their liabilities (to the level of PPF compensation) due to an ‘insolvency event’ 115
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The PPF is administered by the PPF Board (the Board). When an occupational scheme suffers a prescribed insolvency event it enters into an ‘assessment period’. This is a period of not less than one year during which an investigation is made to see if the assets of the scheme are sufficient to enable it to continue as a closed scheme and meet its liabilities. If this is not possible, the scheme is transferred to the PPF. Note also the requirement to file and serve a Pension Protection Fund Inquiry Form (rule 9.15(7) (d)) and the additional procedural requirements set out in rules 9.37– 9.45. The rules differentiate as to what you must do during the assessment period (r 9.37) and post assessment period (r 9.38 - 9.45) In essence, where an application for a financial order has been issued, a member spouse who receives notification that there is an assessment period in relation to that scheme or that the Board has assumed responsibility for that scheme, is now obliged to make available to the other spouse:
1.
a copy of that notification;
2.
a copy of the valuation summary.
3.
a compensation entitlement forecast.
The PPF is required to send this information in any event by virtue of the Pension Protection Fund (Provision of Information) Regulations 2005. Any application for a pension compensation sharing order must be served on the PPF (r 9.40) Form E requires all parties to provide ‘cash equivalent’ (CE) values for each pension and a valuation for the PPF or compensation entitlement for the PPF. If the CE is not available then the member must attach a letter addressed to the trustees or the Board or the Department for Work and Pensions (DWP) requesting that information. When the CE information is received, a copy must be sent to the other party within seven days of receipt. The addresses for the Pension Schemes Registry, Future Pensions Centre and the PPF can be found in the notes to Form E. PPF payments are also mentioned in the Income section of Form E.
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3.11.1
Part 10: Applications under Part 4 of the Family Law Act 1996
Part 10 of FPR 2010 regulates the procedural requirements in respect of applications for an occupation order and/or a non-molestation order under Part IV of FLA 1996 and is based upon rules previously contained in Part III of FPR 1991 and the Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991. It also incorporates rules to support amendments to FLA 1996 Part IV brought about by the Domestic Violence, Crime and Victims Act 2004. There is now one set of rules for all tiers of Court The procedural requirements are broadly the same as previously, save that the application for an occupation/non-molestation order must be supported by a witness statement verified by a statement of truth rather than an affidavit. If a ‘without notice’ application is made, the witness statement must give reasons for not giving such notice to the respondent (r 10.2(4)) A certificate of service form has also been introduced to prove service of the application, statement in support and notice of hearing which must done personally and not less than 2 days before the hearing (or such other period as directed by the court) (r 10.3(1) Where there is an application for an occupation order under ss 33, 35 or 36 the applicant must also serve the mortgagee and any landlord of the property in question with a copy of the application and a notice of the right to make representations at the hearing (r 10.3 (3)) Rule 10.6 requires personal service of the order and, where the order was obtained without notice, the further documents specified in r 10.6(1) (b) If the applicant is a litigant in person and so requests, the court must itself arrange service (r 10.6 (2)) By virtue of rule 10.7 the court may direct that a hearing be held in order to consider any representations made by a mortgagee or landlord, although having said that, this is unlikely to be a regular occurrence. Note the requirements of rule 10.9 in relation to occupation orders where a power of arrest applies and the requirements of service on the police as set out in rule 10.10. Where the applicant is acting in person and so requests, the Court itself must ensure that a copy of the order is delivered to the applicant’s local police station together with a statement showing that the order has been served. 117
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Rule 10.11 deals with proceedings following arrest either pursuant to a power of arrest or warrant of arrest. Rule 10.12 ensures that all orders made under the Family Law Act are endorsed with a notice setting out the consequences of disobedience. Rule 10.13 deals with the enforcement of undertakings which is now provided for in Part 37. As far as child applicants are concerned, permission of the County Court will need to be sought first, pursuant to s 43 FLA 1996, using the Part 18 procedure. Worth noting are the provisions of rule 10.5 which provides that any hearing relating to an occupation order or non-molestation order will be heard in private unless the court directs otherwise. However, if a without notice non-molestation or occupation order with a 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, either on that same day or on the following listed sitting day (PD 10A paras 3.1 – 3.2) Furthermore, where a person is brought to court after arrest under a power of arrest, the press and public must be permitted to attend unless impracticable for security reasons. Part 10 is supported by PD 10A and expands upon the rules relating to the admission of the media to such hearings; however, paras.4.1–7.1 (which relate to enforcement) do not apply in the magistrates’ court. Note in particular paragraph 5.2 relating to the exercise of the power of arrest. Where the arresting officer is also a witness to the events leading to the arrest and their evidence regarding those events is required, arrangements should be made for the arresting officer to attend at a subsequent hearing. The Court also has power to grant bail pending final disposal of the application (PD10A para 6) Finally, there is provision for information to be provided on an application for bail, which includes details of where the person applying would reside if bail is granted, any recognisance which can be offered, the grounds and any change of circumstances since any prior refusal of bail.
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3.11.2
Part 11: Applications under Part 4A of the Family Law Act 1996
Part 11 of FPR 2010 similarly regulates applications under FLA 1996, Part IVA (inserted by the Forced Marriage (Civil Protection) Act 2007), in relation to a forced marriage protection order. The provisions are based on the rules contained in the Family Proceedings (Amendment) Rules 2008, SI 2008/2446. Under the FPR 2010 a separate part is now devoted to the procedure under FLA 1996 Part IVA. Such an application may be freestanding or made within existing proceedings and can be made without notice. Applications for permission to apply for a forced marriage protection order must follow the process set out in rule 11.3 and a part 18 application notice will be required (FP2) which will need to be verified by a statement of truth if the applicant wishes to rely on the matters contained within it. The Application Notice will need to set out the following:
•
The reason for the proposed application, for the making of which
permission is sought;
•
The Applicant’s connection with the person to be protected;
•
The Applicant’s knowledge of the circumstances of the person to be
protected;
•
The Applicant’s knowledge of the wishes and feelings of the person to be
protected (r 11.3(1)(a));
What order is sought and why (r 18.7).
•
A draft of the proposed substantive application (FL401A) will need to be provided together with sufficient copies for service on each respondent as well as the person to be protected (r 11.3(1) (b)). A draft of the order sought should also be filed with the Court (r 18.7) and if it is intended that the application is to be made without notice it will need to contain a provision whereby the Respondent has the opportunity to make representations at an ‘on-notice’ hearing as soon as just and convenient to do so but in any event within 7 days of service of the order upon them. If a without notice application is being made it will need to be supported by a sworn statement setting out:
•
The reason for making the application and why it is being made without notice (r 11.2(2));
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•
The details required by r 11.3(1)(a);
•
The reasons for the urgency;
•
How the overriding objective will be furthered;
•
The Rule which permits such an application (PD 18A para 5.1)
Where the application is being made by an organisation, details of the name and address of the person submitting the application and the position they hold within the organisation must be provided (r 11.2(3)) The Statement in support of the substantive application (FL 401A) will also need to be sworn as opposed to verified by a statement of truth. The application must be served personally on the respondent unless the court orders otherwise. FPR 2010 r 11.4(4) provides for the party to be protected to also be served with a notice informing them of how to apply to become a party to the proceedings and of their right to make representations in writing or orally at any hearing. If the party to be protected is a child or lacks capacity or is a protected party the court must give directions in relation to service (FPR 11.4(5)) The Applicant is required to file a certificate of service in Form FL415 verified by a statement of truth and set out both the date and time of service as well as details as to how the person served was identified (rrs 6.37, 11.4(6) and 17.2(1)(d)) Applications for a person to be joined or removed as a party to proceedings for a forced marriage protection order must follow the process in rule 11.6 (FL 431). Such joinder or removal can also be effected of the courts own initiative in which case the provisions of r 4.3(2) and (3) will apply as will r 11.9. Where an order is made in the absence of the person to whom the order is addressed the court must set out in the body of the order a summary of the reasons and the identity of the persons who are to be served with the order (r 11.8(3)). As for the process for other applications in proceedings, although the Part 18 procedure is not to be followed, the application notice for Part 18 is to be used. It is also perhaps worth mentioning that the provisions for withholding information in forced marriage applications are broader than before, as the previous position permitted the withholding of documents only, whereas rule 11.7 now provides for the withholding of any submissions made or evidence adduced in order to protect the person who is the subject of the proceedings or any other person or for any other good reason (r 11.7(2)).
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The Court is empowered however to require the person seeking to withhold disclosure to produce the document to the court and invite any party to make representations (see also r 11.9). Having considered the nature of the documents, the reasons provided for withholding the information and striking a balance between the competing rights of the parties the court must determine to what extent the application for non-disclosure should be granted. The Court may also direct a person other than the respondent and the party to be protected to be served with the order e.g. the Police, Forced Marriage Unit and the UK Border Agency. The proceedings will be heard in private unless the court directs otherwise. FPR 2010 r 11.11 emphasises the need for the terms of a forced marriage order, which contains one or more provision to which a power of arrest is attached, to be set out in separate paragraphs. The provisions set out in the order should not include any provision to which a power of arrest is not attached. Thus separate orders are required for those provisions which have the power of arrest attached to them. Unlike that under the Part IV of the FLA 1996, in forced marriage cases a power of arrest can still be attached to a non-molestation order as breach of such an order is not a crime. When the order to which a power of arrest is attached is made in the absence of the respondent and without notice of the hearing, the terms of the order and the name of the respondent to whom it is addressed must be announced in open court at the earliest opportunity or at the next listed sitting of the court (PD10A, paras 3.1 and 3.2) Rule 11.12 deals with service on the police in respect of orders containing a power of arrest. An application for a warrant of arrest is one of the options available to enforce a breach of a Forced Marriage Protection Order (r 11.13, Form FL407). The Part 18 procedure applies. Such an application can be made by the person to be protected as a matter of right, otherwise permission of the court is required if the application is being made by a person other than the applicant or the party to be protected (FPR 11.13(2)). The application will need to be supported by a sworn statement setting out:
a)
the interest or connection of the person applying for the warrant;
b) a copy of the order;
c)
the terms that it is alleged have been broken; and
d)
how they have been breached.
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Rule 11.14 deals with proceedings following an arrest. Rule 11.15 deals with the enforcement of orders and undertakings. In essence an order must contain on its face the consequences of disobedience and an application for committal for breach of an undertaking must be made pursuant to Part 37. The attendance of the arresting officer themselves will not normally be necessary unless the arrest itself is in issue (PD10A para 5.2) If the arresting officer is also a witness to the events leading to the arrest and their evidence regarding those events is required, arrangements will need to be made for the officer to attend at any subsequent hearing (PD10A para 5.2) PD10 para 6.1 provides that any application for bail by a person under arrest may be made either orally or in writing. If in writing the application should contain the following:
•
The full name of the person making the application;
•
The address where the arrested person is currently detained;
•
The address where they intend to reside if bail is granted;
•
The amount of recognizance which the arrested person would agree to
be bound by; and
The basis upon which the application is made or any change in
•
circumstances since a previous refusal.
The application must be signed by the person making it or a person duly authorised on their behalf and served upon the person who obtained the injunction. If bail is granted the person bailed must be given a copy of the bail notice (PD10A paras 6.2-6.5) If the contempt is proven, Rule 11.16 provides the court with power to adjourn for consideration of the appropriate penalty which is particularly useful in cases where the contemnor is showing genuine remorse and a period of time would be useful in gauging whether such contrition is maintained. FPR 2010 r 11.19 deals with the taking of recognisances.
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3.12
Part 12: Proceedings relating to children save in relation to parental order, adoption and placement proceedings
Introduction Part 12 regulates the bulk of children proceedings. It applies to private law proceedings, public law proceedings and emergency proceedings, wardship and Hague Convention applications. It does not, however, include adoption and placement proceedings or proceedings under the Human Fertilisation and Embryology Act 2008. This Part is derived from Parts IV, IVA, V and VI of the Family Proceedings Rules 1991 and Family Proceedings Courts (Children Act 1989) Rules 1991. It is divided into seven chapters: interpretation and application; general rules; special provisions about public law proceedings; special provisions about private law proceedings; special provisions about inherent jurisdiction proceedings; proceedings under the Hague Conventions 1980 and 1996, European Convention and the Council Regulation and communication of information about proceedings relating to children. The Public Law Outline (‘PLO’), in the form of the ‘Practice Direction: Guide to Case Management in Public Law Proceedings’ issued by The President on 13 February 2008 (which replaced the Protocol for Judicial Case Management issued in 2003) applied to all levels of court dealing with Public Law proceedings under CA 1989 until 6 April 2010. The FPR 2010 included rules to support that Practice Direction and also includes rules to support Part 1 of the Children and Adoption Act 2006. As from 6 April 2010 a revised form of the PLO (Public Law Proceedings Guide to Case Management (April 2010)) came into being and appeared as PD12A. From 1 July 2013 a Pilot Practice Direction 12A (as annexed to PD 36C) applied to care, supervision and other Part 4 proceedings and revised the Public Law outline in relation to those Courts within the pilot scheme by modifying certain provisions of the FPR namely:
•
Amending the definitions within rules 12.2 and 25.6 in relation to the timing
of applications for permission to adduce expert evidence;
The insertion of new rules to govern procedure in pilot scheme cases (FPR
•
12.21A – 12.21E); 123
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•
Changes to PD12C in relation to service; and
•
Changes to PD 27A in relation to Court bundles.
The pilot ran until 22 April 2014 and enabled courts in specified areas to implement a new court process required to support the proposed 26 week time limit for proceedings. From 22 April 2014, the Public Law Outline (PLO) 2014 for care, supervision and other Part 4 proceedings came into effect. The PLO 2014 updated the pilot PLO that was introduced on 1 July 2013 and is now contained in the fully revised PD 12A. The main focus of each successive Practice Direction was on ever increasing improved case preparation and active case management through a pre-proceedings checklist, early identification of the key issues requiring resolution, use of standard case management documentation, judicial continuity (Docketing) and standardised ‘time-critical’ active case management consisting of the following stages:
•
Pre - proceedings
•
Issue of Proceedings and Allocation
•
Case Management Hearing and Advocates Meetings
•
Issues Resolution Hearing.
•
Final Hearing
The principles underpinning the PLO consisted of:
•
Procedural fairness by local authorities achieved through early pre
proceedings preparation and disclosure;
•
A timetable for the child;
•
The identification and resolution of key issues.
In essence it ensured that when proceedings were issued, to avoid future delay, the court was presented with all the necessary documentation to enable decisions to be made as quickly as possible in accordance with the overriding objective and in accordance with the timetable for the child thus avoiding unnecessary delay. Such documents include:
•
Assessment materials (initial/core assessments)
•
Relevant Reports and records
•
Pre-Existing care plans (Child in need Plan, LAC Plan and Child
Protection Plan)
•
Social Work Chronology (comprising of undisputed/uncontroversial basic
factual information about key dates and events)
Letter before Proceedings
•
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•
Schedule of Proposed Findings
•
Initial Social Work Statement
•
Care Plan
•
Allocation Record and Timetable for the Child
PD 12B sets out the Child Arrangements Programme 2014 (CAP) which again came into force on the 22 April 2014 and replaces the Private Law Programme of 1 April 2010. The key elements of both practice directions (PD 12A & PD 12B) must be followed. In so far as interpretation of the rules is concerned, particular mention ought to be made of the reference to ‘Case Management Order’ which refers to the prescribed case management form of order as set out in PD 12A and ‘interim order’ which refers to both an interim care order and an interim supervision order. The rules (12.2) also describe in detail as to what is meant by “emergency proceeding”, “private law proceedings” and “public law proceedings.” The definition of ‘public law proceedings’ includes “Part 4 proceedings” which is defined separately and in addition includes proceedings for a child arrangements order to which S 9(6B) of the CA 1989 applies or a Special Guardianship Order in relation to a child who is the subject of a care order as well as proceedings for a secure accommodation order under S 25 CA 1989 or a Child Assessment Order. The General Rules (Rules 12.3 – 12.21) Rule 12.3 sets out in detail, in tabular form, who the respective applicants and respondents are in so far as various proceedings are concerned under this Part and thus provides a useful checklist for practitioners. Anyone can make a request to become a party to proceedings pursuant to rule 12.3(2). In Re B (A Child) [2012] EWCA Civ 737 however, it was held that in deciding whether to join someone as a party to children proceedings the provisions of the Children Act 1989, s 10(9) regarding leave to apply are relevant, as is whether the person has an arguable case although it could be argued as to whether or not having an arguable case is an “impermissible statutory gloss” Where a party requires permission before applying to bring a Children Act application then such application must be dealt with pursuant to the Part 18 procedure. Where a natural father of a child does not have Parental Responsibility they will generally be allowed party status unless there are justifiable reasons for not doing so
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(Re B (Care Proceedings: Notification of Father without Parental Responsibility) (1999) 2 FLR 408) Provisions relating to the giving of notice of applications are now contained in a supplementary practice direction (PD 12C). PD 12C in relation to service contains three tables: one specifying to whom documentation should be sent in certain types of proceedings (this also provides for service on CAFCASS as well); the second specifying the minimum number of days prior to a hearing or directions appointment in which specific types of proceedings should be served; and the third setting out the non-parties to whom notice should be given of the proceedings/hearing/directions appointment. Thus, any applicant for a Part 12 order need only consult r 12.3 as to who the respondents are to a particular application and then refer to PD 12C to ascertain what documents are required, the time for service and who should be considered as a non-party to whom notice must be given. Although the Court can disapply the requirements of service of the proceedings on a person who should otherwise be served under the rules (FPR12.3 (3) & (4)) this should only be done in exceptional circumstances (Re A (Father: Knowledge of Child’s Birth) (2011) EWCA Civ 273) In so far as persons with foreign parental responsibility are concerned and who are not covered by r 12.3, the notice requirements are covered by r 12.4. Any person who has foreign parental responsibility for a child and receives a notice of proceedings to which Part 12 applies can apply to be joined as a party using the Part 18 procedure (rule 12.4(5)). Rule 12.5(1) provides that where proceedings are issued, the court in private law proceedings will list the matter for a First Hearing Dispute Resolution Appointment (FHDRA) (rule 12.31/PD12B) As far as public law proceedings are concerned (rule 12.5(2), the court will give any directions listed in rule 12.12 set a date for the Case Management Hearing and any interim hearing and anything else that is required by PD12A (rule 12.25). Rule 12.6 ensures that within a day of issue of Part 4 proceedings a Children’s unless the court considers that such appointment is not necessary to safeguard the child’s interests (rule 12.6). In R (on the application of R and others) v Child and Family Court Advisory and Support Service [2012] EWCA Civ 853 the Court of Appeal held that Cafcass has a
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duty to appoint a guardian as soon as reasonably practicable, taking into account its general functions, duties and resources, but does not owe a specific duty to an individual child. Rule 12.8 deals with service of the application specific regard having to the service requirements in relation to proceedings under Part 4 of the Children Act as regulated by PD 12C (note in particular paragraph 1.2 regarding service on CAFCASS). Note that in so far as section 8 private law proceedings are concerned service will be effected by the court unless the applicant requests otherwise or the court directs the applicant to do so. In any other proceedings service must be effected by the Applicant. The logic to this change seems to be the ever increasing number of litigants issuing proceedings for Child Arrangements Orders (formerly known and Residence and Contact Orders) and it is anticipated that in cases where the applicant is represented as a matter of course the court will direct that service is effected by the Applicant as opposed to the Court itself. For Part 4 proceedings (save and except in relation to an application for an interim order) the minimum number of days prior to the CMH for service of the Application and accompanying documentation is 7 days subject to the discretion to extend or shorten this period (Rule 4.1(3)(a)) PDs 12A and 12B in particular set out the details relating to the FHDRA and the Case Management Hearing. Rules 12.12(2) and (4) lists the directions that the court may consider giving in so far as case progression is concerned including the filing of any risk assessment or S 7 report by CAFCASS and experts’ reports. The list is not exhaustive but includes the following:
•
Timetable for the proceedings including variation of the same;
•
Attendance/involvement of the child (para 4 PD 12B);
•
Appointment of a Guardian or solicitor for the Child;
•
Service of Documents;
•
Submission of Evidence.
This also includes the power to make directions of the courts own initiative, but when doing so the provisions of rules 4.3(2)–(7) will apply, namely advising the parties of their right to make representations as to the effects of an order made in their absence. Rule 12.13 provides that the court will normally always adjourn to a date rather than provide for a general adjournment in order to avoid any drift, particularly in cases
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concerning children. It is impermissible for the court to impose a general time limited stay to encourage negotiation and mediation, as opposed to adjourning to a date under its general case management powers thus providing a departure from the CPR. Rule 12.13 also reinforces the positive duty on the court to set a timetable for the case imposed by CA 1989, s.11 (1). Rule 12.14 also provides that, unless the court directs otherwise, the parties themselves must attend any hearing. Again, whether or not usage will be made of telephone hearings without requiring the parties’ attendance remains to be seen, but much will depend upon the purposes of the hearing and whether matters can be progressed without requiring the parties’ attendance (see rule 12.15) In view of the Child Arrangements Programme this is unlikely save where an agreed order is dependent upon the outcome of initial safeguarding checks. One interesting aspect is Rules 12.14 (3) and (4) which relates to the attendance of a child party at a hearing. Although the rules themselves have no inbuilt presumption against such an attendance this has to be gauged in accordance with their overall interests and in the application of the over-riding objective. (See A City Council v T, J and K (by her Children’s Guardian) (2011) EWHC 1082) Rule 12.14(5) and (6) gives the court a wide discretion to continue with proceedings, notwithstanding the fact that a respondent is not present, provided they have had reasonable notice of the hearing or, notwithstanding that such notice was not given, the circumstances of the case justify proceeding without them. “Reasonable notice” is nowhere defined neither is it specified whether such notice should be in writing. In certain circumstances oral notification could suffice provided it is reasonable. No doubt the over-riding objective will come into play when undertaking the appropriate balancing exercise. Where it is the applicant who doesn’t attend the court may refuse the application or proceed in their absence (r 12.14(7)) However, it is submitted that a third course (depending on the nature of the application) might be to adjourn the hearing, reserving costs pending an explanation as to non-attendance with a warning that a subsequent failure to attend may lead to the application being struck out with consequential cost implications.
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Similarly, where neither party attends, the court has discretion to refuse the application (subject to their being no issue in relation to safeguarding) Other options of course include granting it or adjourning it (rule 12.16(8)) Note however these provisions are disapplied in relation to whether to make an activity direction or attach an activity condition to a child arrangements order or an application for a financial compensation order, an enforcement order or an order under paragraph 9 of Schedule A1 to the 1989 Act following a breach of an enforcement order and where there is insufficient evidence in relation to the person who may be the subject of the direction, condition or order to enable the Court to determine the matter. Rule 12.15 provides that where the parties agree proposals for the management of the proceedings and the court considers that such proposals are suitable it may approve such proposals without the necessity of a hearing in accordance with the over-riding objective and the courts duty of actively managing the proceedings before it. Rule 12.16 sets out the procedure for making applications without notice for which regard must be had to the guidance set out in the cases of Re W (Ex Parte Orders) (2000) 2 FLR 927, Re S (Ex Parte Orders) (2001) 1 FLR 308, B Borough Council v S & Anor (2007) 1 FLR 1600 and KY v DD (2011) EWHC 1277 as well as PD 12B para 12.3 and 12.4) An application in proceedings for an order under s.8 CA 1989 and emergency proceedings can be made without notice as long as the application is filed at the same time or, if the application is made by telephone, the next business day. Once the order is obtained, service of both the order and the application itself must be effected within 48 hours (r 12.16(4) (5)) Rule 12.18 deals with the disclosure and possible redaction of the requisite report in special guardianship proceedings and rule 12.19 deals with the filing of additional evidence which applies to both special guardianship proceedings and applications for a s.8 order. Note the general restriction on filing evidence other than that specifically permitted by direction of the court which reinforces the court’s duty in controlling evidence. Of particular note is rule 12.19(3) which provides that where a party fails to comply with any directions dealing with the filing and service of witness statements and other documentation (including expert evidence), the defaulting party cannot seek to rely upon it unless the court directs otherwise. This, no doubt, will call into play the considerations required by the overriding objective of enabling the court 129
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to deal with cases justly which will involve a balancing exercise between those who have complied with the rules and those who haven’t and recourse to appropriate arguments on relief from sanction under rule 4.6. Rule 12.21(2) sets out the normal order in which the parties are expected to give evidence and whilst Rule 12.21(1) specifies that the court may give directions concerning the order of speeches the rule itself is silent as to the ‘normal’ order for such speeches. Usually, however, this is as follows: • Applicant
•
Any other party with Parental Responsibility for the Child
•
Other Respondents
•
Children’s Guardian
•
The Child (if a party)
The accompanying Practice Directions (12A, 12B) are both supplemented by guidance aimed at allocation to the correct level of judiciary and promoting judicial continuity and proactive unified case management:
•
Presidents Guidance on Allocation and Gatekeeping for proceedings
under Part II of the Children Act 1989 and for Care, supervision and other
Proceedings under Part IV of the Children Act 1989 (Private Law and
Public Law)
•
Presidents Guidance on the use of Prescribed Documents (Public Law and
Private Law)
•
Presidents Guidance on Continuity and Deployment (Public Law and
Private Law) Public Law Proceedings Chapter 3 of Part 12 (Rules 12.21B – 12.30) sets out certain special provisions concerning public law proceedings. The Pilot Scheme Rules 12.21B – E specifically applied to ‘pilot scheme’ proceedings under Part 4 of the Children Act and dealt with the proactive role of the court in drawing up the timetable for the proceedings with a view to disposing of them without delay and within a 26 week timetable. This is now of historic interest only as the pilot scheme came to an end on 22 April 2014 and the rules which were implemented by Practice Direction 36C have now been removed.
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The scheme provided for a heightened proactive duty on the parties to monitor compliance with directions and to bring matters of delay and failure to comply with directions to the Court’s attention as soon as possible (Rule 12.21C) Under the pilot scheme a ‘Case Management Hearing’ must be held by ‘Day 12’, its objective being to consider allocation, identify the issues, draw up a timetable for the proceedings and give such consequential directions as are necessary to manage the proceedings pursuant to rule 12.12 and Pilot PD 12A (Rule 12.21D) The expectation was that the parties would have also identified the areas requiring expert evidence and complied with Part 25 and the associated Practice Directions in time for these issues to be properly dealt with at the Case Management Hearing. A further Case Management hearing should only be held where necessary and no later than in ‘week 4’ (Rule 21.21D (2)) The Issues Resolution Hearing (which must be listed in accordance with the timetable for the proceedings) had the defined objective of identifying resolving and narrowing the remaining issues requiring resolution and giving consequential directions in order to manage the proceedings pursuant to rule 12.12 and Pilot PD 12A (Rule 12.21D (3)). In an appropriate case the IRH may also be utilised as the Final Hearing. (Rule 21D (4)) Prior to the CMC and IRH (see rules 12.21E (3) and (4) in relation to relevant timescales) the Court will direct an Advocates meeting to discuss a draft Case Management Order and any other matters arising from Pilot PD 12A including how a party who is a litigant in person (such being included within the definition of an advocate (rule 12.21E (5))) should participate in those discussions (Rule 12.21E) As far as the Pilot Practice Direction 12A itself was concerned, the revised public law outline was designed to reduce the Local Authority paperwork which had to be filed with the Court on issue to that which was essential for the purposes of the proceedings and to give time for the Children’s Guardian and the Parents’ representatives to consider the Local Authorities case and prepare their case analysis/response in time for an effective first hearing where the court will begin to manage and plan the proceedings. It was supported by three Guidance documents issued by the President:
•
Allocation and Gatekeeping
•
Continuity and Deployment
•
Usage of Prescribed Documents
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In so far as the latter was concerned usage was made of the following prescribed standardised forms:
•
A new Application Form C110A
•
The Allocation Proposal Form (specifying the level of Court to which the
case should be allocated and why)
•
The Standard form of Order for Directions on Issue and Allocation
•
The Standard form of Case Management Order
The Practice Direction also contained detailed tables setting out which documents needed to be filed with the application itself and those, identified by list, which need not be served unless and until a party requests them. Notable was the Courts flexibility including making orders of its own initiative (para 2.2), the correlation between the timetable of the proceedings with that of the child (para 5) and the fact that the 26 week timetable must be adhered to any extensions to which should not be granted routinely and required specific justification (para 6.2). Even then, any further extensions would be for no longer than in 8 week blocks (paras 6.4 & 6.5) Paragraph 7 of Pilot PD12A contained important interpretations particularly in relation to what was meant by a “Case Analysis” which consisted of an analysis of the key issues requiring resolution by way of case outline from the child’s perspective prepared by the Guardian consisting of:
•
A Threshold Analysis
•
A Case Management Analysis, incorporating an analysis of the timetable
for the proceedings and the child as well as an analysis of the evidence a
party proposes to put forward as necessary to resolve issues
•
A parenting Capacity Analysis
•
A Child Impact Analysis, including their ascertainable wishes and feelings
and the impact on their welfare of any Case Management application
which may effect the proceedings
An Early Permanence Analysis, including an analysis of proposed
•
placement and contact proposals.
Other important guidelines were given as to what was required by the Threshold Statement and the Parents Response to Threshold which should consist of no more than 2 pages and, in so far as the parents were concerned, should also include their placement proposals and alternative carers; the Social Work Chronology which should consist of a schedule containing a succinct summary of the significant dates and events in the child’s life in chronological order up to the issue of proceedings
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and the Social Work Statement which should be structured under the following headings:
•
Summary (Order sought with reasons cross- referenced to the welfare
checklist)
•
Family (including Genogram)
•
Threshold (Precipitating Events and background circumstances including
previous involvement and assessments and a summary of the Significant
Harm that the Local Authority seeks to establish)
Parenting Capacity (Assessment of the child’s needs, parental capacity
•
required to meet those needs, identifying any gaps in the same and an
assessment of alternative carers)
Child Impact (Ascertainable wishes and feelings and timetable for the
•
child and that of the proceedings including any delay)
Early Permanence and Contact (Parallel planning, placement options
•
and contact)
•
Case Management (Outstanding Evidence and Assessments necessary and Case Management proposals)
The Mandatory template Case Management Order had to identify and record the Timetable for the child as well as the Timetable for the proceedings and in order to ensure compliance and aid enforcement identify by name on the face of the order the solicitor, social worker, children’s guardian or party who is to undertake the work in accordance with each direction of the Court. The recitals to the Case Management Order were required to set out:
•
The reasons for the timetable for the proceedings and the reasons for any
decision which has the effect of varying or extending it;
•
The reasons for any adjournment and for giving any permission for an
expert to be appointed by reference to the identified benefits and
detriments to the welfare of the child;
•
The key issues to be determined; and
•
The position of the parties including the child.
Rules 12.23 to 12.26 thereafter apply Part 4 proceedings and in so far as practicable other public law proceedings . In so far as practicable the Court will draw up the timetable with a view to disposing of the application without delay and in any event within 26 weeks beginning with the date on which the application is issued.
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In relation to Part 4 proceedings Section 32(1) (a) CA 1989 sets out the statutory requirement to achieve this. As part of the overriding objective and active case management, rule 12.24 imposes upon the parties a duty to monitor compliance with the directions given by the court and to advise the court as to any failure to comply with such directions and any other delay in the proceedings irrespective of whether or not this might affect the timetable. Rule 12.27 contains the extended definition of ‘specified proceedings’ which includes secure accommodation applications. In passing, it is also worth bearing in mind the provisions of rule 12.28 which regulates the exclusion requirements pursuant to interim care orders and emergency protection orders. The rule also provides for personal service of the order on the person to be excluded in addition to a separate statement in support of the exclusion requirement. Note there is no specific requirement for advance notification of the application itself as service on the party to be excluded need only be effected once the order has been obtained, however the excluded party must be informed as to their right to apply for discharge or variation of the provisions of the order. If the order contains a power of arrest, then service on the police should only be affected once the excluded party themselves have been served or is otherwise aware of its terms. Rule 12.28 is supplemented by PD 12K which deals with the practice of announcing such orders in open court if the excluded party is not present when a power of arrest is attached. Concerning applications for secure accommodation orders, rule 12.30 regulates the provision as to the circulation of copies of all written reports filed within those proceedings prior to the hearing. The PLO 2014 Introduction The Public Law Outline 2014 (PD12A) sets out three stages within the proceedings:
–
Stage 1 includes the Advocates’ Meeting and the Case Management
Hearing.
–
Stage 2 is the Issues Resolution Hearing and the Advocates’ Meeting that
precedes it.
–
Stage 3 is the final hearing.
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There are some differences from the Pilot PD12A following the consultation process during the pilot phase:
•
The court can now consider at the Issue and Allocation stage whether an
urgent preliminary Case Management Hearing (CMH) or urgent contested
interim care order hearing may be necessary. This is expanded upon at
paragraph 2.4 under Flexible Powers of the Court and 3.1 Compliance
with the Pre-Proceedings Checklist as well as being flagged up on
form C110A.
•
For the purposes of the PLO 2014 ‘Day’ now means ‘business day’.
‘Day 1’ is the day of issue and ‘Day 2’ is the next business day following
the day of issue of proceedings. ‘Day 12’, ‘Day 18’ and ‘Day 25’
respectively are the 11th, 17th and 24th business days after the issue of
proceedings (Day 1).
‘26 weeks’ means 26 calendar weeks beginning on the day of issue of
proceedings (Day 1).
A new section on parenting capability is also included in the interpretation section at Part 7.
•
The CMH will take place within a window of ‘not before Day 12 and not
later than Day 18’ instead of the previous fixed ‘by Day 12’. This means
that the listing of the Further Case Management Hearing (FCMH) must be
‘no later than Day 25’.
A FCMH should only be listed if necessary and as soon as possible but in
•
any event to take place not later than Day 25. Such hearing should not be
regarded as a routine step (Para 2.6)
A number of amendments have been made to assist the court in
•
identifying cases with an international element. This is highlighted in
Part 1 Key Stages of the PLO section and now forms part of the
considerations at the advocates’ meeting, the CMH and any occasion
when the court may wish to exercise its flexible powers in relation to
an urgent hearing (paragraph 2.4). Paragraph 5.6 of the 2014 PLO
highlights that the court must give consideration to cases with an
international element when identifying the timetable for the child. Further
clarification has been included in the Interpretation section at Part 7.
•
Further revisions have been made to the PLO in relation to protected
parties and others with a disability. This is highlighted in Part 1 Key Stages
of the PLO and directions in relation to litigation capacity now form part of
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The matters which the court must have regard to at those various hearings are set out in PD 12A but will include the following:In so far as the objectives of the CMH are concerned:
•
the level of judge the proceedings should be allocated to
•
the timetable for the proceedings including when they are to be resolved
•
identifying the issues
•
giving directions in accordance with rule 12.12 to manage the
proceedings (rule 12.25)
A further CMH will only be directed where necessary to fulfil the above objectives. As for the IRH this will be conducted with the objective of:
•
identifying the remaining issues in the proceedings
•
resolving or narrowing those issues where possible
•
giving directions in accordance with rule 12.12 to manage the
proceedings to final hearing (rule 12.25)
Where it is possible for all issues to be resolved at the IRH the Court may treat it as a Final Hearing and make final orders (rule 12.25 (4)) Pre-Action Steps At Issue the documentation that the LA must file is prescribed. It falls into 3 categories: Annexe Documentation These are to be filed and served on all parties and placed in the Court Bundle:
•
Social Worker statement
•
Chronology (a succinct summary of the length of involvement of the Local
Authority with the family and the child in particular including the significant
dates and events in the child’s life in chronological order)
• Genogram
•
Care Plan
•
Threshold document
•
Social Worker Assessments
•
Index of Checklist Documents (see below)
Note however, the safety and welfare of the child should never be put in jeopardy by delaying issuing proceedings because of the lack of the above documentation (Para 3.1)
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Checklist Documents
1.
Evidential Documentation
These are to be served on all parties but are not to be included in the Trial Bundle:
•
Previous court orders including facts and reasons and judgements
•
Any assessment materials relevant to the key issues including previous
court reports
•
Information from other agencies
2.
Decision –making Records
These are only to be made available to any party upon request:
•
Letters before proceedings
•
Pre-existing Care plans
•
Key Local Authority meetings and minutes
•
Records of key discussions
These ‘Checklist documents’ are not to be filed unless the court directs otherwise and must not be older than 2 years before the date of issue unless reliance is placed on the same by the Local Authority. Structure for SW Statements The PLO provides that Social Worker statements are to be limited to the following and presumably in this order:Summary
•
The order sought
•
A succinct summary of the reasons for the application with reference to
Welfare Checklist Family
•
Information about the parents, primary carers, significant adults/other children and any relevant family members
Genogram Threshold
•
Precipitating events
•
Background Circumstances (Children Services involvement, previous
orders, emergency steps and assessments)
Summary of significant harm/ likelihood
•
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Parenting Capacity
•
Assessment of child’s needs
•
Assessment of parental capacity to meet those needs
•
Analysis of why parents cannot meet child’s needs (the gap between the
identified needs and the parenting capacity) Assessment of other
Significant Adults who may be carers
Child Impact
•
Wishes and Feelings
•
Timetable for child
•
Delay and Timetable for proceedings
Permanence and Contact
•
Parallel planning
•
Realistic Placement options by reference to welfare and proportionality
• Contact Case Management
•
Evidence and Assessments necessary and outstanding
•
Information concerning any person’s litigation capacity, mental health
issues, disabilities or vulnerability relevant to their capacity to participate in
the proceedings
•
Case Management Proposals
The Timetable for the Child and the Timetable for the Proceedings (Para 5)
Timetable for the Proceedings
The Court must draw up a time table for the Proceedings with a view to disposing of them without delay and in any event within 26 weeks beginning on the day the application was issued. This is a maximum, if they can be resolved earlier then they should be (Para 6.1) Where there are parallel care and criminal proceedings against a person connected with the child in relation to a serious offence against the child, linked directions hearings should, where practicable, take place as the case progresses. (See the 2013 Protocol and Good Practice Model on Disclosure of Information in cases of alleged child Abuse and linked criminal and Care Proceedings (Oct 2013)). That timetable and any revision of it must have regard to the impact which the timetable, or any revision of it, will have on the welfare of the child the subject of the application as well as the duration and conduct of the proceedings. 138
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In considering this the Court will have regard to the Child’s Timetable in order to assess the impact on the welfare of the child when setting or revising the Proceedings Timetable. Thus the Timetable for the child has a direct impact on the Timetable for the Proceedings. Timetable for the Child This is the timetable set by the Court which takes into account dates which are important to the child’s welfare and development. Where there is more than one child the subject of the proceedings the Court will set a timetable for each of them. Examples are given in para 5.5.and the onus is on the Local Authority to identify the significant steps in the child’s life in the Application form and the Social Worker Statement and to keep this information updated. Threshold Document A written outline of the facts which the Local Authority will seek to establish by evidence or concession to satisfy the statutory threshold under s 31(2) CA 1989 limited to no more than 2 pages. Standard Directions on Issue and Allocation (SDO) These will include:
•
A check on Jurisdiction and allocation to appropriate level of judge
(Nominated Case Management Judge/Case Manager)
•
A Check on compliance with the pre-proceedings checklist (Para 3.2)
•
Appointment of a Guardian
•
Direction as to the filing and serving of the Guardian’s case analysis
•
Appointing a solicitor for the child if necessary
•
Appointing any litigation friends or the Official Solicitor if appropriate
•
Identifying whether a request has been made or should be made to a
Central Authority in cases where there is an international element
•
The filing and service of the Local Authority case summary
•
The filing and Service of the parents response
•
Making arrangements for a contested Interim hearing or urgent
preliminary hearing if required
•
Police disclosure
•
The filing and service of any application for Expert Evidence under Part 25
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•
Direction for the Solicitor for the child to arrange the Advocates Meeting
•
List the CMH
As previously noted the court can now consider at the Issue and Allocation stage whether an urgent preliminary Case Management Hearing (CMH) or urgent contested interim care order hearing may be necessary for which the Local Authority is under a duty to notify the Court to that effect. Such urgent preliminary hearing may deal with such things as Jurisdiction, parentage, party status, capacity, disclosure and requests to a Central Authority in cases with an international element. (Para 2.4) If either a contested ICO or urgent preliminary hearing is held before the CMH then the CMH should not be dispensed with unless the court is able to deal with all the issues that are likely to arise at the CMH (Para 3.1) Paragraph 2.2 of the Protocol highlights the flexibility of the courts powers in so far as giving directions without a hearing and taking steps as outlined in the protocol at a different stage if merited. Judicial continuity and correct Allocation will be crucial. ‘Gatekeeping teams’ will be responsible for the initial allocation decisions. Local Authority applicants must complete the Allocation Proposal section of the C110A form upon issue which will be used by the “Gate Keepers” to record their allocation decision. Such initial decision on allocation however does not prevent any party from seeking a subsequent reconsideration of it. Nominated Case Management judges/Case Managers will be responsible throughout for the management of the case: “Case Management shall be by District Judge X / HH Judge Y; the final hearing, if possible, to be listed before…..” Such continuity means that only one judge needs to read the papers and identify the relevant issues thus providing firmer and more consistent case management. Continuity of representation is also important. Several changes have also been made to assist the court in recognising cases which have an international element which must now be taken into consideration at the advocates’ meetings, the CMHs and any other occasion when the court exercises its powers regarding urgent hearings (Para 2.4). Paragraph 5.6 also states that the court must consider cases with an international element when identifying the timetable for the child.
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Parents Response This is a document containing:
•
Response to the Threshold Statement (limited to 2 pages)
•
Placement proposals including the identity and whereabouts of all
relatives and friends they propose are considered by the Court as
potential alternative carers
Information relevant to their capacity to litigate
•
Guardian’s Case Analysis This is an outline of the case from the perspective of the child’s best interests incorporating the key issues that need to be resolved including:
•
Threshold analysis (normally the Guardian does not pay much attention to
this however clearly such consideration is important especially as this is the
“Gateway to State Intervention” and active consideration ought to be
given to this especially if there is likely to be a contested interim hearing)
Case management analysis (including an analysis of the Timetable for
•
the Proceedings and the timetable for the child and the evidence which
any party proposes is necessary to resolve those issues)
•
Parenting capability analysis
•
Child impact analysis (including an analysis of their wishes and feelings
and the impact on their welfare of any application to extend the
proceedings timetable)
•
Early permanence analysis (including an analysis of the proposed placements and contact framework by reference to a welfare and
proportionality analysis)
•
To what extent there should be direct involvement of the Child within the
proceedings. Advocates Meetings Advocates’ meetings, in particular, will be required to discuss the provisions of the Case Management Order (the local authority taking the lead) in an attempt to agree this and then draft and submit it to the court prior to any Case Management Hearing or Issue Resolutions Hearing (rule 12.26). (Note: rule 12.26(1) now says that the court ‘will direct’ a discussion between the advocates to discuss the provisions of a draft Case Management Order and consider any other matter set out in PD 12A and following on from that prepare a draft order for the court’s consideration (Note the change of emphasis from the previous wording of ‘will consider’ and ‘should prepare’) 141
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Prior to the CMH the advocates meeting should also be utilised to discuss the Local Authority evidence and identifying the relevant issues, consider any issue on Jurisdiction, identify required disclosure and the parties positions with a view to reciting these in the draft Case Management order as well as identifying appropriate experts and drafting questions for them. Prior to the IRH the Advocates meeting should address and review the evidence and the position of the parties and identify:
•
the remaining key issues and how they can be resolved or narrowed at
the IRH including whether final orders can be made at the IRH
•
the evidence that is relevant and witnesses required for the Final Hearing
•
whether the IRH will include a contested hearing (submissions) or oral
evidence
•
what further evidence is required to be heard to enable key issues to be resolved or narrowed at the IRH
If there is a dead-locked issue in the case and hearing oral evidence at the IRH will resolve the case or crystallise the issues the then the court must hear that oral evidence at the IRH. If this is likely to be the case then the parties must notify the court in advance and seek appropriate directions to ensure appropriate court time is made available. The meeting is thus aimed at avoiding the previous practice of protracted negotiations outside the ‘court room door’ which often took up substantial amounts of time and held matters up in what was often a busy list and accordingly was not an efficient use of valuable court time and resources. Now agreed orders can be presented to the court when the case is called, or alternatively, any issues of contention can be dealt with expediently and in a focussed way. This is particularly important in so far as IRH’s are concerned as their prime objective is to resolve and narrow issues and to identify the key remaining issues requiring adjudication by the Court and the most proportionate way of resolving those issues. Note the word ‘advocate’ also includes a litigant in person (rule 12.26(6)) and, where there is a litigant in person, the court will direct how that person is to take part in the advocates’ discussions (rule 12.26(2)) Unless the Court directs otherwise the Advocates meeting must take place no later than 2 days before the CMH (7 days in the case of the IRH) and the draft CMO filed with the court no later than 11:00am the day before. There is also a duty on the
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Local Authority representative to notify the court immediately of the outcome of discussions at the meeting particularly if there is an issue at which live evidence will be called. The Case Management Hearing This is a most important hearing at which the path that the proceedings will take will be set and at which the following will be considered:
•
Jurisdiction and allocation
•
Identification of Key issues
•
The evidence necessary to resolve those issues
• Disclosure
•
Identification of additional parties and Intervenors
•
Consideration of any application for Expert evidence
•
The Time table for child and for the proceedings
•
Giving directions for the determination of any disputed issue about
litigation capacity
•
Dealing with any issues in relation to threshold
•
Giving concurrent directions as to placement
•
Ensuring compliance with directions already given
•
Directing the filing of any agreed threshold document, final evidence and
care plans
•
Giving Case management directions to conclude the case within 26
weeks to include the setting of the IRH/ Early Final Hearing/Final Hearing
Giving Directions as to special measures/interpreters and intermediaries.
•
Although the PLO 2014 is silent on the issue of Fact Finding Hearings clearly this has to be an important consideration although the effect on the Timetable for the Child and the Proceedings will feature heavily in such a determination. The Case Management Order (CMO) Within this Order the Court must also identify and record within the Recitals the following:
•
The Timetable for the Child and the Timetable for the Proceedings.
•
The key issues to be determined
•
The positions of the parties including the child
•
The Reason for the grant or refusal of any adjournment or permission to
instruct an expert and the impact this decision has on the welfare of
the child.
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•
The reason for any extension to the timetable for the proceedings beyond 26 weeks and the impact such decision will have on the welfare of the
child. Note the focus on the impact on the welfare of the child of certain Case Management decisions. The order must also be drawn up in such a way so as to ensure compliance e.g. identifying by name the Solicitor, Social Worker, Children’s Guardian, expert who is to undertake the particular task in question and the timescale for the same. No hearing should conclude without a date for the next hearing having been fixed by the Court. Issues Resolution Hearing At the IRH the court will:
•
Identify the key issues to be determined and whether they can be
resolved or narrowed at the IRH
•
Consider whether the IRH can be used as a final hearing
•
Resolve or narrow the issues by hearing evidence (See para 2.3)
•
Identify evidence to be heard on the remaining issues at the Final Hearing
•
Give final Case Management directions to include:-
o
any extension of the timetable to the proceedings
o
the filing of any threshold agreement or statement of facts and issues
remaining to be determined
o Filing of:
•
Final evidence and care plan
•
Case analysis for Final Hearing
• Witness template • Skeleton Arguments
•
Consideration of Judicial reading list/reading time including final
hearing time estimate and an estimate for judgement writing time
•
Ensuring compliance with PD 27A
•
Listing for final hearing
Extensions to the 26 Week Timescale An extension can be granted if necessary to resolve the proceedings justly and the expectation is that such applications will be considered at a hearing (Paras 6.2 & 6.6) ‘In no case can an extension beyond 26 weeks be authorised unless it is “necessary” to enable the court to resolve the proceedings “justly””
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‘Only the imperative demands of justice – fair process – or of the child’s welfare will suffice.’ (Re S 16/4/14 Bournemouth and Poole CC Munby P) When deciding whether to extend the timetable the court must have regard to the impact of any ensuing timetable revision on the welfare of the child. Although this is an important consideration it is not a trump care as the child’s welfare is neither the court’s first or paramount consideration. Any request for an extension to the 26 week timetable must state
•
the reasons for the request, the period of extension being requested
(which can be for no longer than 8 weeks at a time) and a short
explanation setting out:-
o
why it is necessary for the request to be granted to enable the court
to resolve the proceedings justly;
the impact which any ensuing timetable revision would have on the
o
welfare of the child to whom the application relates;
the impact which any ensuing timetable revision would have on the
o
duration and conduct of the proceedings; and
the reasons for the grant or refusal of any previous request for
o
an extension. The Part 18 procedure applies to such applications and for the benefit of any doubt rule 4.1(3)(a) (which refers to the Courts general case management powers in extending or shortening time periods for compliance with orders, rules and practice directions) is disapplied for this purpose. When any decision is made on an application for extension the court will announce its decision and the reasons for it with a short explanation of the impact the decision will have on the welfare of the child. Not only will the parties receive a copy of this order (including the judge’s reasons and welfare impact) but any person who has actual care of the child who is the subject of the proceedings (rule 12.26C (2) (b)) the clear message being to keep those with a vested interest in the proceedings fully informed so as to provide as necessary information and reassurance to the child(ren) concerned. The maximum extension is 8 weeks. If a further extension is required then the reasons must again be recorded (There is no limit on the number of extensions that may be granted but each one must not be for in excess of 8 weeks and can be determined on paper or by way of a telephone hearing) (Paras 6.5 & 6.6)
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The President has given preliminary and tentative guidance on what may amount to potential justifications for extensions of time:
•
Cases where it is identified at the outset that they cannot be resolved
within the time limit – including those involving complex medical
evidence, Drug and Alcohol type cases, cases with an international
element, and cases where parental disabilities require special
assessments.
•
Cases where something ‘unexpectedly emerges’ to change the nature
of the proceedings late in the day. These might include allegations of
sexual abuse; cases where the proposed carer dies, suffers a serious illness
or is imprisoned; or where a realistic alternative family carer emerges.
Those matters where ‘litigation failure’ by one or more of the parties makes
•
it impossible to complete the case (watch out for wasted costs and
naming and shaming)
(Re S 16/4/14 Bournemouth and Poole CC Munby P) Private Law Proceedings Chapter 4 of Part 12 (rules 12.31 – 12.35) makes special provision in respect of private law proceedings, more particularly the filing and service of an answer to the application by the respondent, the listing of the FHDRA (which is directed by the Child Arrangements Programme to be within 4 weeks and no later than 6 weeks from the date of issue unless the matter is urgent) and the procedure for making applications for the attachment of warning notices to contact orders as well as the filing and service of risk assessments by CAFCASS. All parties, as well as CAFCASS, are required to attend the FHDRA, its purpose being to provide a forum for the parties with the help of a Cafcass officer and the judge. Copies of the CAFCASS risk assessment will be served by the court on each of the parties. Before doing so, however, the court must consider whether, in order to prevent risk of harm to the child, it is necessary for:
•
information to be deleted from a copy of the risk assessment before that
copy is served on a party; or
•
service of a copy of the risk assessment (whether with information deleted
from it or not) on a party should be delayed for a specified period and
may give directions accordingly. (FPR 12.34)
Pursuant to rule 12.35, where an enforcement order is made, it is the duty of the applicant to arrange personal service of it upon the defaulting party, unless the court directs otherwise. 146
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The various issues to be considered at the FHDRA are set out in PD 12B and of particular note again is the emphasis on non-court dispute resolution (para 14.13) Child Arrangements Programme 2014 (CAP) PD12B The Child Arrangements Programme (“CAP”) replaces the Private Law Programme and integrates the old PD3A and 12B. It is intended to be a more comprehensive guide to the Private Law process and applies wherever there is a dispute in relation to arrangements concerning children. It is designed to assist families to reach safe and child focused arrangements wherever possible outside the Court setting by encouraging and assisting parents to take greater responsibility for their children and emphasising that Parental Responsibility means exactly what it says. Where this is not possible it aims to resolve that dispute in a way so as to avoid delay through robust case management and judicial continuity (Paragraph 1.1, 1.2). The centrality of the child who is the subject of the proceedings is given increased emphasis by:
•
Promotion of their welfare (para 4.1 and 11)
•
Being central to the decision making process (paras 4.2 and 4.3)
•
Involvement in the decision making process (para 4.4)
•
Hearing the Child’s views
•
Setting a timetable for the Child (paras 15.1 and 15.2)
The Child Arrangements Programme is user friendly and uses plain English and is clearly drafted with litigants in person in mind bearing in mind the erosion of Legal aid for the majority of Private Law Children disputes. It contains advice on public funding for mediation or legal advice (PD 12B para 2.8) and there is a glossary of terms in the annex. It is intended that there should be less review hearings and addendum CAFCASS reports (unless they are necessary and in the child’s interests) and that the Courts role is limited to resolving disputes that parents are unable to themselves and then to ‘bow out’ having done so on the making of a final order at a final hearing. This may mean that there is a greater role post final order for CAFCASS through monitoring orders or Family Assistance Orders (S 11H and S 16 Children Act 1989; PD 12B para 15.5)). There is a clear emphasis on non-Court dispute resolution (NCDR) by encouraging advice and support (para 2.3) promotion of parenting plans (para 2.4 – 2.7 and 8.6), mediation, Separated Parents Information programmes and attendance at a “MIAM”.
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However, it is not expected that those who are victims of domestic abuse should participate in non-court dispute resolution (Paragraph 5.2) The emphasis on nonCourt dispute resolution not only applies at the outset of a dispute but at every stage during the Court process (see Paragraphs 6.1 and 6.2) If the Court considers that such non-Court dispute resolution is appropriate it may direct the proceedings to be adjourned for such period as is appropriate to enable the parties to obtain information and advice with regard to non-Court dispute resolution and (if the parties agree) to enable non-Court dispute resolution to take place. When adjourning for such purpose the Court will give directions whereby the parties must, by a set time, advise the Court as to the outcome of such non-Court dispute resolution namely, whether the matter has been settled and a Consent Order agreed, or whether the matter remains in dispute and what further directions are required or whether a further adjournment is necessary to enable further negogiations (Paragraphs 6.3, 6.4) As required by FPR 2010 Part 3 Form C100 must confirm whether attendance at a MIAM has taken place and if not, why not (Paragraphs 8.3, 8.4) If the parties have previously entered into a parenting plan this should also be attached to Form C100 (Paragraph 8.6) This is an important requirement as the Court may well take note of any prior comprehensive agreement been made insofar as the child’s arrangements are concerned and whether those arrangements should be departed from and if so, what justification there is for doing so. Upon issue all private law proceedings are to be allocated to the appropriate level of judge and, where appropriate to a named Case Management Judge or Case Manager so as to achieve judicial continuity within the proceedings in order to provide firmer and more consistent case management: “Case management shall be by District Judge X/ HH Judge Y: the final hearing, if possible, to be listed before...” Continuity of representation is also important. This is achieved (as with the PLO 2014) with the use of Gatekeeping teams who will consider the application on the basis of the information provided to determine the appropriate level of judiciary. This is subject to ongoing review in light of:
•
any response to the application
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•
the outcome of the safeguarding checks
•
at FHDRA
Such allocation decision does not prevent a party to the proceedings from applying to review that decision and there is an expectation that that lay justices should not hear any contested private law application where the estimated length of hearing is in excess of 3 days without prior approval of the DFJ. Gatekeepers will also consider whether any MIAM exemption has been validly claimed and if not whether to direct the Applicant to attend one before the FHDRA having regard to rule 3.10(3), whether the case should be allocated to a different area in light of the parties and more particularly the subject child’s location and whether an urgent hearing is necessary such that directions for an accelerated hearing is necessary. Gatekeepers will record their allocation decision and reasons on the case papers. In applications for child arrangements orders (but not necessarily for specific issue or prohibited steps orders) before the FHDRA, CAFCASS is required to identify any safety issues by undertaking safeguarding enquiries within 17 working days of issue which will include checks of the Local Authority and the Police and telephone risk identification interviews with the parties. Such enquiries are confined to matters of safety and not an exploration of the issues in the case or to the initiation of contact. CAFCASS will thus have no contact with the child prior to the FHDRA. The outcome of such risk identification work and safeguarding enquiries must be reported to the Court at least 3 days before the hearing by completion of a Safeguarding letter or Report (para 13.7) There is an emphasis of judicial continuity (Paragraph 10) and the Practice Direction provides guidance in respect of urgent and without notice applications (Paragraph 12) Urgent hearings are those in which the Applicant invites the court to either:
•
list the application for a without notice hearing or
•
reduce the 14 day time-limit for service with an accelerated hearing.
Such request should be by way of a C2 application. Urgent applications do not carry with them a requirement to attend a MIAM in accordance with Rule 3.8(c) (Paragraph 12.1) Insofar as without notice applications are concerned the Practice Direction emphasises the fact that such Orders should only be made in exceptional
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circumstances (examples of which are set out in Paragraph 12.3). Any Order following such a without notice Hearing should specify the reasons why it has been made without notice and the facts which have been relied upon by the Court in making the Order unless those facts are clearly contained in the supporting evidence. Provision also needs to be made for Respondent to apply to vary or discharge the Order (Paragraph 12.4). The First Hearing Dispute Resolution Appointment must take place between five and six weeks following the issue of the application with the Respondent given at least ten days notice unless the Court abridges that time. There is also provision for the Respondent to file the appropriate response (Forms C7/ C1A) no later than ten working days before the Hearing unless the Court abridges time. The FHDRA provides an opportunity for the parties to agree the issues and to attempt to reach agreement to narrow those issues. It is thus similar to a PTR, IRH and FDR. A CAFCASS Officer must attend along with a mediator where available (Paragraph 14.6). On the occasion of the FHDRA the Court should have the following documents:
•
C100 application and C1A (if any).
•
Notice of Hearing.
•
C7 Response and C1A (if any).
•
CAFCASS safeguarding letter/report.
The clear advantage of an FHDRA is similar to that of an FDR in proceedings for a financial remedy, namely a hands-on approach from the court hopefully leading towards an early resolution in line with the mindset set out in Parts 1, 3 and 4 of the rules. The matters which the Court must consider on the occasion of the FHDRA are comprehensively set out in Paragraph 14.13: •
Early Identification of the Issues and their speedy Resolution in accordance with
the timetable for the child
•
The use of Non – Court Dispute Resolution including MIAM(paras 5 & 6)
•
Allocation and Gatekeeping (para 9)
•
Judicial Scrutiny of Agreed Orders
• Reports •
Wishes and Feelings of the Child
•
Case Management
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•
Judicial Continuity (Docketing)(para 10)
•
Risk Identification/Safeguarding (para 13)
•
Capacity of Litigants (para 16)
•
Appointment of a Rule 16.4 Guardian (para 18) (note the importance of
consulting with CAFCASS first)
•
Fact-Finding Hearing (para 20)
•
Enforcement (Para 21)
Where issues are not able to be resolved on the occasion of the FHDRA the following must be included in the order:
•
The issues that are agreed
•
The issues that remain to be resolved
•
How those issues are to be resolved including issues as risk and safety
Any interim arrangements agreed
•
The timetable for the proceedings including the date time and venue of
the next hearing.
•
Non-Court Dispute Resolution
•
Whether CAFCASS is required to attend the final hearing for which specific
justification will need to be provided (query the use of questions in
appropriate cases (e.g. where the principle of a Child Arrangements order
is not in dispute) to resolve any issues of ambiguity particularly regarding
‘staged’ Child Arrangements orders.
Whether the Court should produce a ‘litigant in person’ bundle
•
These can be considered in turn:Safeguarding The Court should inform the parties of the contents of the safeguarding letter/report which should be disclosed unless it is considered that to do so would create a risk of harm to a party or the child (see also para 11 PD 12J) If disclosure is not ordered then the Court will have to consider how that information should be relayed to the parties. If Solicitors are involved this may well assist as disclosure may be made to the party’s representative only, although of course difficulties will arise where there are litigants in person and it may well be that the Judge or CAFCASS themselves may have to outline as far as they can the nature of the concerns but without compromising any party or child’s safety. The Court should also consider whether a Fact Finding Hearing is needed for which consideration should be given to PD12J.
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If safeguarding information is not available then the Court should adjourn the proceedings until they are as no Interim Order for contact (even by consent) can be made in its absence (unless it is to protect the safety of the child) hence emphasising that once proceedings are afoot the Court’s duty to scrutinise the arrangements proposed as fully as possible in accordance with the welfare of the child (see also para 12 PD 12J) The useful provision in the Practice Direction is that the Court now has power to direct that the safeguarding letter/report should be attached to any referral to a Supported Child Contact Centre with the aim of assisting the referral process in order to reassure the Centre that neither party poses a risk to the other parent or the child or indeed other centre users and the staff. MIAM This will involve consideration as to whether any MIAM exemption has been validly claimed or whether the Respondent has attended a MIAM. Non-Court Dispute Resolution The Court must actively consider what other options there are for resolution out of court which will include such things as mediation, collaborative law, and agreement by way of negotiation through a parenting plan. Consideration can also be given as to attendance at an activity separated parents information programme. However, where the initial safeguarding information or the form C1A itself indicates that there may be issues of domestic abuse relevant to the courts determination of the issues then those issues must be addressed at the hearing and no party expected to engage in any form of NCDR (para 9 PD 12J) Orders by Consent All Orders are subject to scrutiny by the Court and in cases where safeguarding checks remain outstanding the making of a Final approved Consent Order should be held on the Court file with the formal making of it into an order deferred to a fixed date within twenty eight days where, upon receipt of the safeguarding letter/ report, the Court may make an Order in the terms agreed and without the need for the attendance of the parties provided no safeguarding issues arise (see also paras 7 and 12 PD 12J) Reports The existence of a dispute is not an automatic trigger for a Section 7 Report.
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Any Section 7 report ordered should direct specifically what matters relating to the child’s welfare need to be addressed and shall only be ordered in cases where the principle of with whom the child is to live or spend time or otherwise have contact with is in dispute. A report can also be ordered if there is an issue concerning a child’s wishes, there is an alleged risk to the child or where information and advice is needed that the Court considers is necessary before making a Final Order. When ordering the report the Court Order should state on its face the specific factual or other issues which the report is to address. Thus in each case the Court must actively consider what justifies a CAFCASS report and ensure that such report focuses on the issues that render it necessary to have one. Where there has been current or recent involvement with the Local Authority it may well be that the report should be directed to the relevant Local Authority. The Court can also consider whether or not to direct a report pursuant to Section 37 Children Act 1989. Wishes and Feelings of the Child The Practice Direction also makes it clear that the Court must consider the wishes and feelings of the child insofar as their age and understanding is concerned and will include considerations as to:
•
Their awareness of the proceedings.
•
Whether their wishes and feelings are readily available and if not how can
they be ascertained?
•
How should they be involved in the proceedings?
•
Who should inform the child of the outcome of the case?
No doubt the Court will look to CAFCASS to provide this information and involvement in the proceedings may also necessitate party status and a review of the initial allocation decision. Other ways of involving the child can also include permitting them to write to the Judge and the Judge themselves meeting the Child in accordance with the ‘Guidelines for Judges Meeting Children who are subject to Family Proceedings.’ One interesting addition to the Practice Direction is that where both parties are litigants in person the Court can direct the Court Service to produce a ‘litigant in person bundle’ and, wherever possible, provide a copy of the Order made to both parties before leaving the Court providing them with a full explanation as to what is required so that both parties clearly understand the terms of the Order including
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the date, time and venue of the next Hearing. Clearly this will mean either being provided with a typed unsealed order or one in manuscript form either produced by the parties or their representatives. Needless to say sufficient court time will need to be put aside for both FDHRA and FDA’s. As with public law proceedings PD12B Paragraph 15 sets out the timetable for the child for which the Court proceedings should have regard to which will include such things as:
•
The child’s birthday.
•
The start of nursery/schooling.
•
The commencement of a school term/year.
•
Any proposed change of school and/or any other significant change in
the child’s family or social circumstances.
Paragraph 15.3 of the Practice Direction attempts to put to bed the never-ending reviews with regard to the progression of contact by providing that cases should not be adjourned for reviews of contact or for an Addendum Section 7 report unless such Hearing is necessary and for a clearly defined purpose consistent with the child’s best interests and the timetable for the child. To that extent CAFCASS are encouraged to make recommendations for a stepped Child Arrangements Orders (Paragraph 15.4) If ongoing active involvement or monitoring is needed then this can be done through Section 11H Children Act 1989 or by virtue of a Family Assistance Orders under Section 16 Children Act 1989. Dispute Resolution Appointment This will be listed following the preparation of the Section 7 or other expert report or a separated parent’s information programme if considered helpful in the interests of the child. The author of the CAFCASS report will only attend the Hearing if directed. On the occasion of the DRA the Court will:
•
Identify the key issues and the extent that those issues can be resolved or
narrowed.
•
Whether the hearing can be used as a Final Hearing for which purpose
the Court can hear evidence (or submissions) to resolve or narrow those
issues. (Again sufficient listing time will need to be set aside to enable this
to happen)
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•
Identify the evidence that is to be heard on the issues which remain to be
resolved at the Final Hearing and thereafter list the matter for final hearing
giving final case management directions to include the filing of:
o further evidence;
o
Statement of facts/Issues remaining to be determined;
•
Witness templates and skeleton arguments;
•
Ensuring compliance with PD27A in relation to bundles.
CAP01 is the prescribed form of order that the court will make on allocation. CAP02 is the prescribed form of order that courts will make on the occasion of the FHDRA. CAP03 is the prescribed form of order at the DRA CAP04 is the prescribed for of order at the final hearing. (Note that references to “file and serve: have been replaced by “send”) Practitioners would do well to obtain and prepare draft orders in such format (to be agreed if possible) in readiness for presenting to the Court on the occasion of issue along with the application and on the occasion of each specific hearing. No hearing at any stage of the proceedings should conclude without a date for the next hearing having been fixed and communicated to the parties at court. CAP02 should identify and record on the face of the order:
•
Compliance with the MIAM requirement
•
That NCDR has been considered
•
The timetable for the proceedings for the child(ren) and listing the DRA
•
The issues to be determined and the positions of the parties
•
A summary of the reasons for any decision in relation to a Section 7 Report
or permission to instruct an expert with reference to the identified benefits
and detriment to the welfare of the child
CAP03 should identify and record on the face of the order:
•
What issues (if any) have been resolved
•
What issues remain to be determined
•
The interim arrangements
•
Directions for the next hearing including date, time and venue and
whether the CAFCASS officer should attend
CAP04 should identify and record on the face of the order:
•
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•
Any undertakings offered
•
Any Child Arrangements orders made
•
Any orders made in relation to Parental Responsibility, activity conditions,
prohibited steps, specific issue, contact centre directions, monitoring by
CAFCASS or Family assistance orders
Paragraph 21 of PD12B deals with the matters which the court must actively consider when dealing with the enforcement of child arrangements which will include the following:
•
Considering whether the facts are relevant to the alleged non
compliance are agreed or whether it is necessary to conduct a Hearing
to establish those facts.
•
Consider the reasons for any non-compliance.
•
Consider how the wishes and feelings of the child are to be ascertained.
•
Consider whether advice from CAFCASS is required.
•
Assess and manage the risks insofar as making further Child Arrangements
Orders are concerned.
Consider whether a referral to a separated parents information
•
programme or other non-Court dispute resolution is appropriate.
Consider whether an Enforcement Order is appropriate bearing in mind
•
the welfare checklist.
Any application for enforcement should be listed within twenty working days of issue (Paragraph 21.2). Upon issue the gatekeepers may direct further safeguarding checks but if such application for enforcement is issued is more than three months after the Order which is the subject of enforcement such safeguarding checks must be ordered. The annex to PD12E contains a useful glossary of terms for the litigant in person. Of particular note is the description of domestic violence which now mirrors the agreed Home Office definition and which mirrors that contained in PD 12J thus providing consistency Where domestic violence and applications for contact and residence are concerned the previous practice direction relating to this issue (Residence and Contact Orders: Domestic Violence and Harm [2009] 2 FLR 1400) and the considerations as to fact-finding hearings were set out in PD 12J with their being separate Guidance relating to Split Hearings (May 2010) The new PD12J incorporates and supersedes that guidance which has now been elevated from that of guidance setting out good practice into a Practice direction. 156
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Domestic violence is now defined according to the recognised agreed governmental definition as being: “Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse: • Psychological • physical • sexual
•
financial
• emotional Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour. Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.” The Court must at all stages of the proceedings and particularly at the FHDRA consider whether domestic violence is raised as an issue and if so must:
•
Identify the factual welfare issues involved;
•
Consider the nature of any allegation admission or evidence of domestic
violence or abuse and the extent to which it would be likely to be relevant
in deciding whether to make a Child Arrangements Order and if so in
what terms;
•
Give directions to enable a contested relevant factual and welfare issues
to be tried as soon as possible and fairly;
Ensure that where violence or abuse is admitted or proven that any Child
•
Arrangements Order in place protects the safety and wellbeing of the
child and the parent with whom the child is living and does not expose
them to risk of further harm such that any contact that is ordered with the
parent who has perpetrated violence or abuse is safe and in the bes
interests of the child; and
That any interim child arrangements ordered prior to the determination of
•
the facts in the absence of any admission is only made following the
guidance set out in paragraphs 25 and 27 of the Practice Direction.
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The Practice Direction (Paragraph 7) also emphasises the importance of scrutiny of arrangements made by agreement. The Court should not make an agreed Child Arrangements Order unless safeguarding checks have been obtained by the Court and are clear and neither should the Court accept an application to seek permission for withdrawal of an application for a Child Arrangements Order without this information. Furthermore the Practice Direction suggests that such orders should not be made unless the parties themselves are present in Court and a CAFCASS Officer has spoken to the parties separately and, save where it is satisfied that there is no risk of harm to the child, should the Court accede to the parties’ request. Therefore the obtaining of safeguarding checks will assume in many cases prime importance. In cases where there is a suspicion of a risk of harm to the child the Court can direct a report under Section 7 before making a decision. Furthermore, there is a continuing duty on CAFCASS to provide a risk assessment pursuant to Section 16A of the Children Act 1989 if at any stage in the proceedings they are given cause to suspect that a child concerned is at risk of harm (Paragraph 13 PD 12J). Where an admission of domestic violence or abuse has been made this should be recorded as a recital in the Order and a copy made available to CAFCASS for the purposes of their Section 7 report. The Practice Direction emphasises that the Court must determine whether a Fact Finding Hearing is necessary as soon as possible not only because this will provide an appropriate factual basis for any subsequent welfare report but also to provide a proper basis for an accurate assessment of risk for the purposes of a Child Arrangements Order and indeed any activity condition or order as a result. Paragraph 17 of PD12J sets out the considerations which the Court should look at before determining whether a Fact Finding Hearing is necessary or not. The considerations are as follows:
•
The views of the parties and of CAFCASS;
•
Whether there are admissions by a party which provide a sufficient factual
basis on which to proceed;
•
If a person has been granted Legal Aid on the basis of evidence of
domestic abuse whether or not that evidence is sufficient to provide a
factual basis on which to proceed without any further findings being
necessary;
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•
Whether there is any other evidence available to the Court that provides
a sufficient factual basis on which to proceed;
•
The nature of the evidence required to resolve the disputed allegations;
•
Whether the nature and extent of the allegations if proven would be
relevant to the issues before the Court;
Whether a separate Fact Finding Hearing would be necessary and
•
proportionate in all the circumstances of the case.
In every case where the Court determines that a Fact Finding Hearing is
•
not necessary then the Order should record the reasons for that decision.
Where the Court considers that a Fact Finding Hearing is necessary directions must then be given to ensure that the matters in issue are determined as soon as possible and both fairly and proportionately consideration being given to the matters set out in Paragraph 19 of PD12J namely:
•
What are the key facts in dispute?
•
Whether it is necessary that a Fact Finding take place at a separate
Hearing rather than at the Final Hearing;
Whether the key facts in dispute can be contained in a Scott Schedule
•
(it is envisaged that this will be the norm and where there are litigants in
person and where practicable this should be completed at the first
Hearing with the assistance of the Judge);
What evidence is required in order to determine the existence of a
•
pattern
of coercive, controlling or threatening behaviour, violence or abuse;
Directions in respect of written Statements outlining the allegations and
•
response to them;
Whether third party evidence and documentation is required, for example
•
the Police or Health Service;
•
Whether evidence may be required from third parties;
•
Whether any other evidence is required to enable the Court to decide the
key issues;
•
What evidence the alleged victim of the abuse is able to give and
what support they may require at the Fact Finding Hearing in order to
present that evidence;
What support the alleged perpetrator may need in order to have a
•
reasonable opportunity to challenge that evidence;
Whether a Pre-Hearing Review is required to ensure that directions have
•
been complied with to enable an effective Hearing.
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As can be seen the whole tone of Paragraph 19 is clearly written with the aim of litigants in person in mind and with the emphasis on support to enable a fair Hearing both for the alleged victim of abuse and the alleged perpetrator. Paragraph 20 provides that where a Fact Finding Hearing is listed the Court must also at the same time list the Dispute Resolution Appointment following on from it. Wherever possible this should be heard by the same Judge firstly as judicial continuity is important but also given the fact that the Fact Finding Hearing is just one part of the Final Hearing and therefore should be determined by the same Trial Judge. Clearly ample time will need to be fixed between the two Hearings to enable appropriate consideration as to the outcome of the Hearing and consideration as to whether or not there needs to be further CAFCASS involvement in light of the findings made which is likely to be the norm as Paragraph 22 of the Practice Direction provides that it will be unusual for there to be a Section 7 report prior to the Fact Finding Hearing as it is only once the correct facts have been established that such a report should be ordered addressing the welfare issues in light of those findings. Paragraphs 25 to 27 of the Practice Direction deals with making Interim Child Arrangements Orders prior to the determination of the Fact Finding Hearing. Amongst the considerations with regard to making such an Order is of course the welfare needs of the child in accordance with the welfare checklist in Section 1(3) Children Act 1989. Other important considerations will be whether the safety of the child and the parent who has made the allegation can be secured both before, during and after any contact. The Practice Direction goes on to mention not merely physical harm but also the emotional and psychological effects on the child and the caring parent which they are likely to suffer as a potential consequence of making or indeed declining to make the Order. This is important as in cases of alleged domestic abuse it may be that the Court is satisfied as to the physical safety of the child and the caring parent particularly if contact is to be facilitated with the use of third parties or at a Contact Centre however domestic abuse itself is not just about the physical aspects but also the emotional and psychological harm it can cause not only to the child but the parent who is the alleged victim. Paragraph 27 sets out the Court’s considerations when deciding to make such an Interim Order which include:
•
the appropriate arrangements required to ensure that any risk of harm to
the child and the parent is minimised so that the safety of the child and
the parties is secured and in particular:
o
whether the contact should be supervised or supported and if so where and by whom; and 160
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o
If it is deemed direct contact is not appropriate the Court should consider
•
the availability of appropriate facilities to achieve that end.
whether there should be indirect contact and indeed whether that
contact would be beneficial for the child.
Paragraph 28 of the Practice Direction is an important provision when the Court is faced with two litigants in person. It provides that each party can be asked to identify the question they wish to ask of the other party and to set out in evidence their version of the disputed key facts. The Court should then be prepared, where necessary and appropriate, to conduct the questioning of the witness on behalf of the parties focusing on the key issues in the case. This is intended to prevent a victim of alleged domestic abuse having to crossexamine the perpetrator and indeed having to face direct cross-examination from their alleged abuser. Once findings are made those findings should not only deal with the factual basis of the allegations but also then deal with the effects that they have had on the child and the abused parent. This is important insofar as drafting the Scott Schedules is concerned and an additional column should be included not only dealing with the alleged incidents and the response to those incidents and the Court’s findings in relation to that but also the Court’s findings in relation to the effects that those incidents if proven have had on the caring parent and the child. Those findings must be recorded, served on the parties and on the CAFCASS Officer for the purposes of their subsequent Section 7 report. In addition to ordering a Section 7 report the Court, in light of the findings made, should also consider whether it would be assisted by any social work, psychological or other assessment of any party or the child (e.g. an expert risk assessment) and if so make directions consequential upon that. Re W (Children: Domestic Violence) (2012) EWCA Civ 528 emphasizes the fact that the Practice Direction must be followed in every case involving allegations of Domestic Violence. “PD 12 J should be read…..as imposing an obligation on the court to determine whether findings need to be made about factual issues at all and whether, if so, that should be done in a separate fact finding hearing or as part and parcel of a composite fact finding and welfare hearing. If it decides a separate fact finding hearing is necessary then it has to give directions for that and it must be sure to fix the 161
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welfare hearing there and then.” (Re H (A Child) (2013) EWCA Civ 72) In essence, a fact-finding hearing should only be ordered if the court takes the view that the case cannot properly be decided without such a hearing. Even if one is necessary it does not automatically follow that such a hearing needs to be separate from the substantive hearing (see Re L, Re V, Re M & Re H (Contact: Domestic Violence) [2000] 2 FLR 334; Re C [2009] EWCA Civ 994; AA v. NA and Kab (FactFinding Hearing) [2010] EWHC 1282). A fact-finding hearing should only be ordered if the court can discern a real purpose for such a hearing. If such inquiry would not be purposeful then one should not be ordered (AA v. NA and Kab (Fact-Finding Hearing) [2010] EWHC 1282). It should be noted therefore that not every allegation of domestic violence will activate the court’s attention but only such violence as alleged which, if proved, would be likely to affect the decision of the court and have an impact on the conduct and outcome of those proceedings. It is thus a matter of discretion for the judge whether to order a preliminary fact-finding hearing and it is permissible for them not to do so provided reasons are given (Re C [2009] EWCA Civ 994). The Practice Direction therefore does not prevent a judge from making an order for contact without making findings of fact in relation to disputed allegations of domestic violence, it simply requires the court to determine as soon as possible whether it is necessary to conduct such a hearing before it can proceed to consider any final order for residence or contact. Although a two-stage process is contemplated of fact-finding hearing and welfare hearing, it does not require two separate hearings. The Practice Direction should thus be read as imposing an obligation on the court to determine whether findings need to be made about factual issues at all and whether, if so, that should be done in a separate fact-finding hearing or as part and parcel of a composite fact-finding and welfare hearing. If the court decides that a separate fact-finding hearing is necessary, then it has to give directions for that and it has to fix the welfare hearing there and then. (SS v KK (2009) EWHC 1575; Re H (Interim Contact: Domestic Violence Allegations) (2013) EWCA Civ 72) As a fact-finding hearing therefore is part of the process of trying a case and not a separate exercise, after determination of the facts at issue and adjournment of the case for disposal of the primary application it remains part-heard and should accordingly be relisted before the same judge (Re B (Children) [2008] 2 FLR 141; para
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31 PD 12J). Once a fact-finding determination has been made, particularly where there is a finding of domestic violence, the court has within its power the ability to direct that a party should seek advice or treatment as a precondition to an order for contact (paras 33 and 34 PD 12J). The court should also attach a schedule to the judgment setting out exactly what findings of fact have been made including the nature and degree of the Domestic Violence, the effects on the child, his parents and any other relevant person. (Re M (Allegations of Rape: Fact-Finding Hearing) [2009] EWCA Civ 1385; para 30 PD 12J)). Within that schedule it may be relevant to record whether a matter was not found proved because the judge was satisfied that it did not happen or whether it was not found proved because the party making the assertion had failed to establish it to the relevant standard of proof. (Re A (Fact-Finding: Disputed Findings) (2011) EWCA Civ 12) When giving judgement in a fact finding hearing it is also permissible for the judge to differentiate between those facts which are proved and those where there is mere suspicion or speculation (Re A (A Child) (No 2) (2011) EWCA Civ 12). What the court can’t do however is then go on to deal with the substantive application (see Re E (A Child) [2009] EWCA Civ 1238). This has to await in essence what is the later disposal hearing. Paragraph 36 of PD12J reiterates that following a fact finding hearing where findings of domestic abuse have been made the Court should only make an Order for contact if satisfied that the physical and emotional safety of the child and the parent with whom they are living can be secured both before, during and after contact and that the parent with whom the child is living will not be subjected to further controlling or coercive behaviour by the other parent. This will be a question of fact backed up by evidence obtained during the Fact Finding Hearing and any subsequent CAFCASS report or risk/psychological assessment of the abusing parent. In determining whether contact should take place following findings made the court will be guided by the principles enumerated in the seminal case of Re L, Re V, Re M & Re H (Contact: Domestic Violence) [2000] 2 FLR 334 (and as set out in para 37 PD 12J) in order to weigh the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors of contact, namely:
•
the conduct of both parties to each other and the children;
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•
the effect the domestic violence which has been established has on the
child and on the parent with whom the child is living;
the extent to which the parent seeking the order is motivated by a desire
•
to promote the best interests of the child or, conversely, is using the
proceedings as a means of continuing a process of violence, intimidation
or harassment against the other parent;
the likely behaviour during contact of the parent seeking contact and the
•
effect on the child of that behaviour;
the capacity of the parent seeking contact to appreciate the effect of
•
past violence and the potential for future violence on the other parent
and the child;
the attitude of the parent seeking the order to past violence, by that
•
parent; and
•
whether that parent has the capacity to change and to behave
appropriately. As with Interim Child Arrangements Orders if the Court nonetheless feels that there should be direct contact Paragraph 48 of the Practice Direction draws the Court’s attention to the following considerations:
•
Whether or not contact should be supervised;
•
Whether conditions should be imposed in any Order;
•
Whether such contact should be for a specified period; and
•
Whether those arrangements should be reviewed.
If the Court feels that direct contact is not appropriate then it should go on to consider whether indirect contact would be beneficial for the child. Finally Paragraph 40 stresses the importance of any Judgments of the Court making clear how the findings on the issue of domestic violence or abuse has influenced its decision in respect of the issue of the arrangements for the child and in particular where there are findings of domestic abuse or violence why it is deemed appropriate that contact should nonetheless take place and why the Court forms the view that it is safe and beneficial for the child for it to do so. PD 12M deals with the steps the court must undertake prior to making a family assistance order pursuant to CA 1989, s.16. Essentially the court must obtain the opinion (verbally or in writing) of the CAFCASS officer or local authority to whom the order is directed as to whether such order is in the best interests of the child and if so how it should operate and over what duration. Furthermore, before making such an order the court must give any person whom it proposes be named in the order an opportunity to comment upon any opinion given 164
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by such officer. PD 12N provides for disclosure to the National Probation Service in cases of applications for contact enforcement orders under CA 1989, s.11J or alleged breaches of the same. This practice direction only applies to proceedings in the High Court or county court. Proceedings under the Inherent Jurisdiction Chapter 5 (Rules 12.36 – 12.42) deals with special provisions in relation to the court’s inherent jurisdiction (Wardship proceedings) which must be commenced in the High Court and is supported by PD 12D which contains examples of where the inherent jurisdiction of the High Court in relation to children might be used. See PD 12D – Inherent Jurisdiction (Including Wardship) Proceedings at para.1.2 – a very useful guide! PD 12P deals with the removal of a child who is a ward of court from the jurisdiction for holiday periods, which will normally be by way of an open ended order and the issue of passports for them without any restriction. Child Abduction Proceedings Chapter 6 (Rules 12.43 – 12.71) deals with Hague Convention and child abduction proceedings. In so far as child abduction proceedings are concerned, the rules support the Child Abduction and Custody Act 1985, giving effect to the main provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children. The rules also support the articles dealing with children matters in Council Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility. However, the rules relating to recognition and enforcement under the Council Regulation are contained in Part 31. Decisions in Hague Convention cases should be reached within 6 weeks (Art 11) and should not be adjourned for more than 21 days at any one time (rule 12.51) Particular note should be made of rule 12.56 which introduces a new provision of keeping a central record of decisions registered pursuant to CACA 1985. The supporting practice direction (PD 12F) sets out in detail the procedure to be followed in cases of international child abduction in both Convention and non-
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Convention cases and has been drafted with the aim of being more accessible to litigants in person (i.e. in a comprehensible plain-English style). PD 12F also sets out, rather usefully, the procedure for the port alert scheme as well as the procedure whereby the Identity and Passport Service (IPS) may take action to prevent a UK passport or replacement passport from being issued and includes a draft letter. It also deals with the Council Regulation in relation to enforcement of access orders in light of the decision of Re G (A Minor) (Hague Convention: Access) [1993] 1 FLR 669, the impact of which is set out in the accompanying annex and duplicates the Practice Note [1993] 1 FLR 804 which states that in the vast majority of such cases a separate application will be needed under CA 1989, s.8. Part 6 of PD 12F provides ready access to the protocol concerning child abduction cases between the UK and Pakistan. PD 12O relates to the disclosure of information concerning a child arriving in the UK by air in respect of applications for return orders. Communication of information in proceedings relating to Children Chapter 7 (Rules 12.72 – 12.75) regulates the issues as to whom disclosure of information can be made to within children proceedings without making that party in contempt of court (rules 12.73 and 12.75) and is supplemented by PD 12G which again sets out a useful list of such persons in tabular form. The first table is likely to be of more significance to the practitioner as this deals specifically with communications by a party or their representative. It sets out the identities of the person seeking to disclose and the proposed recipient of that information, the nature of the information to be communicated and the purpose of that communication. All a practitioner need, do should they wish to disclose/communicate information obtained within Part 12 proceedings, is to first consider the status of the intended recipient by reference to column 2, commencing at para 2.1, by reference to the definitions contained in para 6.1. If the intended recipient is not one of the persons so listed then an order of the court will need to be sought regarding such disclosure. If the recipient is listed then the practitioner will need to satisfy themselves that the communication is for the corresponding purpose and ensure that only the information permitted by column 3 is disclosed.
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Included within the list of such persons is a professional legal adviser which is defined in rule 2.3 as someone who is providing advice to a party but is not instructed to represent that party in the proceedings. In the context of care proceedings and related Criminal proceedings Rule 12.73(1) (c) and PD 12G allows the Local Authority to provide to the Police or the CPS a text or summary of the whole or part of a judgement given within Family proceedings for the purpose of ongoing criminal investigations. Rule 12.73(1) (a) (viii) also allows for the provision of documents and information from those proceedings, provided such disclosure is made to a police officer who is carrying out his duties pursuant to s46 Children Act 1989 or serving in a child protection or paedophile unit or such disclosure is for the purpose of child protection as opposed to a criminal investigation. However, in the latter case where such disclosure is made, the police cannot make onward disclosure of any document or information for the purposes of an investigation or prosecution without the express permission of the Court. This includes onwards disclosure to the CPS. (A District Council v M & West Yorkshire Police (2007) EWHC 3471) It is important to note that rule 12.75 which regulates communication of information for purposes connected with the proceedings also includes disclosure to a McKenzie Friend for the purposes of advice and support and for attendance at a MIAM or other form of non-court dispute resolution and complaints Note that under rule12.73 failure to abide by the above will amount to contempt of court. PD 12E describes the procedure to be followed in respect of urgent (including out of hours) business in the High Court Family Division and relates specifically to applications concerning children. This Practice Direction however does not subsume the Presidents Guidance in relation to Out of Hours Hearings dated 18 November 2010, thus any such application will also need to make reference to that. PD 12 H is a short practice direction dealing with contribution orders and will only be of relevance to local authorities who have obtained contribution orders relating to looked after children. PD 12I deals with applications in the High Court for an order restricting publication of information relating to children and incapacitated adults by the media (reporting restrictions orders). Such orders must not be granted where the person against whom the application is
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made is neither present or represented unless:
•
the applicant has taken all practicable steps to notify the respondent; or
•
there are compelling reasons why they should not be so notified.
Orders will only be made without such notice in exceptional circumstances. The Practice Direction also states that the Practice note ‘Applications for Reporting Restrictions’ dated 18 March 2005 ought to be followed. The Practice note itself annexes draft orders which practitioners will no doubt find useful. Such orders will generally:
(a) provide permission for the parties names to be withheld from the public;
and
(b) prevent publication of
(i)
(ii) any photographs or pictorial representations of the parties or the
the parties’ names and addresses; children of the family; or
(iii) any information that would be likely to lead to the children being
identified, including but not limited to their names, addresses
and schools.
3.13
Part 13: Proceedings under section 54 of the Human Fertilisation and Embryology Act 2008
This Part regulates applications under the Human Fertilisation and Embryology Act 2008 for a parental order and provides a uniform procedure irrespective of the court in which the proceedings are commenced. Rule 13.1 defines the terms used throughout part 13 and rule 13.2 confirms that the provisions in part 12 relating to the prohibition on filing evidence without the court’s permission and the conduct of the hearing itself all apply to applications pursuant to s 54 of the HFEA 2008. Applications for a parental order must be commenced using form C51. Upon issue the court will set a date for the first directions hearing, appoint a parental order reporter and set a date for the hearing of the application. Rule 13.3 mirrors the adoption process whereby the parental order reporter is not required to attend the final hearing unless directed otherwise but is, however,
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required to attend all directions hearings (PD 16A para 10.2) Rule 13.4 deals with situations where there is a foreign element. The rule requires the applicant to give notice of the application to a person with foreign parental responsibility and their right to apply to be joined as a party. Any application for joinder must be by way of the Part 18 procedure. Accordingly, upon service of the notice of proceedings, it will be important to advise the recipient as to their entitlement under the rules to apply to be joined as a party. Pursuant to rule 13.6, it is the duty of the applicant to arrange service of the requisite documentation, not the court. Rule 13.9 deals with the various matters which must be considered at the first directions hearing more particularly, the timetabling for filing the parental order report, statement of facts and any other evidence and whether or not the case should be transferred to another Court. In some cases, directions may be given automatically upon issue of proceedings thus dispensing with the need for a first directions hearing (rule 13.5(2)). Where this occurs, the procedure set out in rule 4.3(2)–(7) applies in respect of orders made of the court’s own initiative. See also rule 13.9(4) (a) relating to the court’s exercise of its case management powers of its own initiative at any stage in the proceedings. Rule 13.17 deals with applications for recovery orders made without notice pursuant to Section 41(2) of the Adoption and Children Act 2002. If the application is made by telephone, the applicant must file the application the next business day. In any other case the application must be filed when made and puts in place a single procedure for applications for recovery orders.
3.14
Part 14: Procedure for applications in adoption, placement and related proceedings
This Part regulates the procedure in adoption, placement and related proceedings. In essence, the general provisions contained within the Family Procedure (Adoption) Rules 2005 have been incorporated in their entirety in FPR 2010 save for rules 14.13 and 14.14 (relating to confidential reports and communication of information relating to the proceedings) which are additions. This Part also applies an order under S26, or S51A (2) (b) of the Adoption and Children Act 2002. Rule 14.2 deals with applications for a serial number. Again, rule 14.3 sets out a very
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useful table indicating the identity of the proposed applicants and respondents to various proceedings regulated by this Part. PD 14A also helpfully sets out all those who must be given a copy of the application pursuant to rule 14.6(1) (b) (ii). Note that a father who does not have parental responsibility is not automatically a respondent to proceedings (unless there is an order under S 26 of the Adoption and Children Act in their favour) The question of party status will therefore need to be considered at the first directions hearing pursuant to rules 14.3(3) (a) and 14.8(1) (b). Rule 14.7 specifies that, unless the court directs otherwise, the first directions hearing in applications governed by this rule must be listed within four weeks of the date of issue of the application. Rule 14.8 goes on to set out the various matters on which the court will consider giving directions at the first directions hearing when setting the timetable. It is also a requirement that the parties or their legal representatives must attend the first directions hearing unless the court directs otherwise. Moreover, the court cannot make a placement order unless the legal representative for the applicant attends the final hearing (rule 14.16(9)). As part of the court’s duty of active case management, directions can be given at any stage in the proceedings and can be undertaken of the court’s own initiative. The court is also empowered to give the directions provided for in rule 14.8 once the application is issued rather than waiting for the first directions hearing (rule 14.6(4) To supplement this proactive approach, following on from the first directions hearing, the court will also monitor compliance by the parties with the court’s timetable and the directions given (rule 14.8(4), (5) and (7)) The rule also highlights the fact that the court may use its powers to adjourn the proceedings under Part 3 if it considers NCDR might be appropriate. As can be seen, Part 3 permeates throughout almost the entire body of the rules much like Part 1 even in proceedings for Adoption and Placement if the court considers it appropriate. PD 14B supplements rule 14.8(3) and deals with the additional requirements and considerations at first directions hearings where applications for an adoption order involve a foreign element. In relation to parents’ consent to a placement for adoption, or indeed the making of an adoption order itself, PD 5A details the requirements of the form of consent; however a new provision in r 14.10(2) allows the court to give directions about the manner in which consent to the making of an adoption order may be given if the form referred to in the practice direction (A100 – A106) is not used. 170
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Worthy of note is the fact that there is a new form of consent (A107) for usage by a partner or step-parent. The matters to be covered in the suitability report or placement report pursuant to rule 14.11(3) are set out in Annexes A and B respectively of PD 14C. The matters which need to be contained in the relevant health reports pursuant to rule 14.12(1) are set out in the annex to PD 14D. Rule 14.13(1) enables the court to restrict access to confidential reports, however there is “a strong presumption in favour of disclosing to a party any material relating to him or her” (Re D (Minors) (Conciliation: Privilege) (1993) 1 FLR 932) and “non disclosure of relevant material is the exception, and should only be ordered where the case for doing so is compelling.” (A Local Authority v A (2009) EWCA Civ 1057) Rule 14.14 sets out the circumstances in which disclosure of information in relation to the proceedings will not be regarded as a contempt of court and is supported by PD 14E which provides a useful list of who may disclose what to whom and for what purpose in tabular format. By virtue of rule 14.16(6) the default position is that the child themselves must attend the final hearing of the adoption application, the ethos being to ensure that the child, in respect of whom the order is about to be made, fully understands, as far as they are able to, the nature of the order. Rule 14.15 provides that it is not necessary for the child to be represented on that occasion, unless the Court directs otherwise. Rule 14.18(1) (d) is supported by PD 14F which deals with information which may be disclosed to an adopted adult and the related procedure. An adopted adult over 18 is entitled to obtain the following:
•
the application form for an adoption order;
•
the adoption order itself;
•
any order containing any provision for contact made post adoption;
•
any transcript or written reasons of the court’s decision;
•
any report prepared by a children’s guardian, reporting officer, children
and family reporter, local authority or adoption agency.
Such application is made on Form A64. Rule 14.20 deals with applications for recovery orders made without notice pursuant to Section 41(2) of the Adoption and Children Act 2002 and puts in place a single procedure for applications for recovery orders.
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If the application is made by telephone, the applicant must file the application the next business day. In any other case the application must be filed when made. Rule 14.21 allows the applicant to request the High Court, pursuant to its inherent jurisdiction, for directions on the necessity of giving to a father without parental responsibility notice of the applicant’s intention to place a child for adoption. This, of course, will engage the usual arguments as to the European Convention on Human Rights, arts.6 and 8 and the need to balance the subject child’s interests against those of the biological father. One would expect that in most cases notice will be given unless the case provides an exception to the rule (e.g. conception as a result of rape or child placed at severe risk).
3.15
Part 15: Representation of protected parties
This Part governs the appointment of the Official Solicitor and others (litigation friend) to represent the interests of mentally incapable parties. It contains special provisions which apply in proceedings involving protected parties and is derived from CPR Part 21 and Part IX of the Family Proceedings Rules 1991. Part 15 has been separated from the Part containing more detailed provisions relating to the representation of children (Part 16). ‘Litigation friend’ is now to be used in place of ‘next friend’ and ‘guardian ad litem’. It applies to all three levels of court thus the Family Proceedings Court has jurisdiction to appoint litigation friends and where necessary invite the Official Solicitor to act for a party who lacks capacity. (See the amended Allocation and Transfer of Proceedings Order 2008, art 15) However, there will be cases where matters should be transferred and not retained by the Family Proceedings Court. Practice Guidance issued during July 2011 by the Justices’ Clerks Society gives some examples:
1.
Where the court has to make a finding as to capacity because the party
either disputes the expert opinion or refuses to be assessed or where
experts disagree about capacity.
The party is a litigant in person who is likely to dispute any assessment as to
2.
capacity or is unlikely to attend for assessment.
The consequence of being a protected party will cause complications
3.
within the proceedings which may prolong them, impact on the number
of assessments required or cause difficulties in terms of the manner in
which proceedings are conducted.
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There is, of course, a presumption of capacity (Mental Capacity Act 2005, s.1(2)) that no one should be treated as incapable of making decisions all of the time; the relevant test should be applied to each decision when it is to be (or was) made, because capacity may vary. A protected party is ‘a party, or an intended party who lacks capacity...to conduct the proceedings’ (FPR 2010, rule 2.3). Section 2(1) of the Mental Capacity Act 2005 provides that ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’. Section 3 refers to a party’s inability to make a decision which is based on whether they are able:
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the
decision, or
(d) to communicate his decision (whether by talking, using sign language or
any other means).
There is thus a two-stage test:
•
Is there an impairment of, or disturbance in the functioning of, the
person’s
•
mind or brain? (Diagnostic threshold.)
Is that impairment or disturbance sufficient to render the person incapable of making that particular decision?
There must therefore be an assessment of capacity as well as a medical diagnosis of mental disorder. The rule is concerned with whether the party lacks capacity and is now more issues based. A person may lack capacity for some purposes but not others and thus the test of capacity is decision specific as the impairment or disturbance may be permanent or temporary (Masterman-Lister v. Brutton & Co and Jewell & Anor [2002] EWCA Civ 1889). This, of course, is a question of fact based upon the balance of probabilities but with a presumption of capacity. Often an expert’s report will be required (see PD 15B, paras. 1.2, 1.4, 2.1 and 3.1 – 5.1) as well as evidence from those who know the individual concerned and, of course, from meeting that individual face to face. Having said that neither the rules nor the Mental Capacity Act 2005 itself contains 173
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any requirement for a judicial determination on the question as to whether or not an individual lacks capacity. A protected party must have a litigation friend to conduct proceedings on their behalf (rule 15.2) the procedure for appointing the same is set out in rules 15.5 – 15.8. Furthermore, a person may not, without the permission of the court, take any steps within the proceedings until a protected party has a litigation friend, and any step which is so taken will have no effect unless the court orders otherwise by way of ratification (rule 15.3(2) and (3)). Any litigation friend appointed without a court order will need to sign and file a certificate of suitability in accordance with the provisions of para.3.1(b) of PD 15A together with an authority to act as well as an undertaking as to costs (rules 15.4(3) (c) and 15.5(3)). This requirement, however, does not apply where it is the Official Solicitor who is appointed. The certificate of suitability states that the person signing can ‘fairly and competently conduct proceedings on behalf of the protected party” and has “no interest adverse to that of the protected party” (FP9) The filing of the required documentation with the court is a prerequisite before any steps can be taken as litigation friend (rule 15.5(4)) The court can also appoint a litigation friend itself on an application made pursuant to the Part 18 procedure subject to receiving the evidence as set out in para.4.3 of PD 15A (FPR 2010, rule 15.6). The duties of a litigation friend are set out in rule 15.4(3). In essence a litigation friend is required to fairly and competently conduct proceedings on behalf of the protected party; must have no interest in the proceedings adverse to that of the protected party and ensure that all steps and decisions taken by them must be taken for the benefit of the protected party. If the protected party recovers capacity the appointment of the litigation friend may be terminated by court under rule 15.9. The rule is supported by two practice directions. Practice direction 15B provides guidance regarding what the court will do when an adult may be a protected party and lack capacity to conduct proceedings, including the ability to give evidence as a witness. It emphasises the need to address any issue as to capacity as soon as it arises and
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before the court makes any directions affecting the protected party. Usually, but not always, this will be an issue raised by the Solicitor themselves in a case where a party is represented. It also reiterates the point that issues as to capacity may fluctuate throughout the proceedings and must therefore be kept under review. The practice direction also deals with the ability and desirability, in some instances, of a protected party giving evidence (paras 1.4 – 1.5) Specific provisions are also made for young adults who are 16 – 17 and who may lack capacity on reaching 18 (Para 6.1 – 6.2 and 7.1) dependant on whether or not they are a party or the subject of the proceedings themselves. A Practice Note dated March 2013 provides specific guidance as to the appointment of the Official Solicitor for a “protected party” within family proceedings. In essence the Official Solicitor is the litigation friend of last resort and they will not accept appointment where there is another person available who is suitable and willing to act as litigation friend. It emphasises that there must be undisputed evidence that the party, or intended party, lacks capacity to conduct the proceedings. To that extent the party, or intended party, is entitled to dispute an opinion that they lack litigation capacity and there may be cases where the party’s, or intended party’s, capacity to conduct the proceedings will be the subject of dispute between experts and a formal finding by the court under FPR 2010, rule 2.3 will be required. No person, including the Official Solicitor, can be appointed to act as litigation friend without their consent thus, where a case is already before the court, an order inviting the Official Solicitor to act should be expressed as being made subject to their consent. To enable the Official Solicitor to consider the invitation for him to act he should be provided with the following as soon as possible:
(a) the sealed court order inviting him to act as litigation friend (with a note of
the reasons approved by the Judge if appropriate);
(b) a copy of the letter of instruction to the expert by which an opinion was
sought as to the party’s capacity to conduct the proceedings whether in
the form of the Official Solicitor’s certificate of capacity to conduct the
proceedings or otherwise;
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(c) (adult party) the opinion on capacity (the Official Solicitor’s pro forma
certificate of capacity to conduct proceedings may be requested from
his office for the purpose of obtaining an opinion);
(d) confirmation that there is satisfactory security for the costs of legal
representation (including any relevant supporting documents); it is a
matter for the Official Solicitor whether the proposed security for costs is
satisfactory;
(e) confirmation that there is no other person suitable and willing to act as
litigation friend (including the enquiries made to this end);
(f)
the court file (provision of the court file may not be necessary if the court
directs a party to provide a full indexed copy of the bundle to the Official
Solicitor on a timely basis).
To avoid unnecessary delay in progression of the case, they will also require from the solicitors appointed for the protected party or child:
(a) a reading list, identifying the material which the solicitor considers will assist
by way of an introduction to the case and in obtaining an overview of the
issues from the perspective of the protected party or child;
(b) a summary of the background to the proceedings, of any major steps
that have occurred within the proceedings and identification of the issues in the proceedings;
(c) advice as to the steps the Official Solicitor should now take in the
proceedings on behalf of the protected party or child;
(d) copies of all notes of attendance on the protected party or child so that
the Official Solicitor is properly informed as to the views and wishes expressed by the protected party or child to date;
(e) confirmation of the protected party’s or child’s present ascertainable
3.16
views and wishes in relation to the proceedings.
Part 16: Representation of children and reports in proceedings involving children
Part 16 of FPR 2010 and the supporting PD 16A (which sets out the Presidents Practice Direction on Representation of Children 5th April 2004) contain special provisions in relation to the representation of children and the circumstances in which the court will make a child a party to family proceedings. The provisions apply to proceedings across all levels of court involving children and incorporate the old rule 9.5 of FPR 1991. They are intended to reflect the provision for the representation of children in FPR 1991 and the Family Procedure (Adoption) Rules 2005. The term ‘guardian 176
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ad litem’ is abolished and replaced by ‘children’s guardian’. The other terms for CAFCASS officers, such as ‘children and family reporter’, remain unchanged. These rules cover:
•
the appointment of a children’s guardian in specified proceedings and
adoption proceedings;
•
the appointment of a litigation friend;
•
the appointment of a person to represent children in other proceedings
(non-specified) (now to be known as a rule 16.4 children’s guardian) (note
there appears to be no provision governing the grant of party status in
convention proceedings (Re LC (No 2) (2014) UKSC 1; WF V FJ, BF and RF
(2010) EWHC 2909))
It is important to distinguish between the two circumstances in which a children’s guardian may be appointed under the rules since their duties are different. The powers and duties of a children’s guardian appointed under r 16.3 (generally public law and adoption proceedings) are set out in rules 16.16 – 16.21 and PD 16A Part 3; those of a children’s guardian appointed under r 16.4 (generally private law proceedings) are set out in rules 16.22 – 16.28 and PD 16 A Part 4. In non-specified proceedings the court may make a child a party if it is adjudged as being in the child’s best interests to do so (rule 16.2). A guardian should not be appointed under rule 16.4 if the child concerned wishes to act without one and the conditions set out in rule 16.6 as to capacity are satisfied. PD 16A Part 4, paras.7.1–7.3 set out the matters which the court must take into consideration before making a child a party in private law proceedings, which no doubt will prove an extremely useful and readily accessible aide memoire. In essence, before deciding whether to make a child a party consideration should be given as to whether an alternative route might be preferable such as asking CAFCASS to carry out further work, making a referral to social services or obtaining expert evidence. Guidance in particular is given in Paragraph 7.2 as to the types of circumstances which might justify the making of such an order namely:
•
Where Cafcass advises it
•
Where the child has a standpoint or interest inconsistent with, or incapable
of being represented by, any of the adult parties
Where there is an intractable dispute over residence or contact, including
•
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where all contact has ceased, or where there is irrational but implacable
hostility to contact, or where a child may be suffering harm associated
with the contact dispute
Where the views and wishes of the child cannot be adequately met by a
•
report to the court
•
Where an older child is opposing a proposed course of action
•
Where there are complex medical or mental health issues or other
unusually complex issues necessitating separate representation of
the child
•
Where there are international complications (other than child abduction),
in particular, where it may be necessary for there to be discussions with
overseas authorities or a foreign court
Where there are serious allegations or other abuse in relation to the child
•
or allegations of domestic violence not capable of being resolved with
the help of Cafcass
•
Proceedings concerning more than one child and the welfare of the
children is in conflict, or one child is in a particularly disadvantaged
position
•
Where there is a contested issue about scientific testing
Amongst these considerations is the recognition that separate representation of a child may result in a delay in the resolution of the proceedings and the court must take into account such risk of delay as well as other factors adverse to the welfare of the child, the court’s primary consideration being the child’s best interests. The family proceedings court (as was) could thus appoint a children’s guardian in private law cases as of right as Rule 16.2 is applicable to all tiers of court and there was no need, as there was under the old rules, to transfer private law proceedings up to the County Court in order to appoint a children’s Guardian when a child is made a party. This may well have had an impact on the criteria in relation to future transfer applications, as some cases that previously would have been dealt with in the county court could now remain in the magistrates court although since the creation of the new single family court this is now no longer such an issues although still an important consideration when it comes down to allocation to the correct level of judiciary. To assist in this respect reference should be had to the guidance note issued in July 2011 by the Justices’ Clerks Society which emphasises the fact that when exercising this power the first point of reference will be PD 16A Part 1 Section 1 (Paragraphs 7.1 – 7.5):
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7.1 Making the child a party to the proceedings is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases. Before taking the decision to make the child a party, consideration should be given to whether an alternative route might be preferable, such as asking an officer of the Service or a Welsh family proceedings officer to carry out further work or by making a referral to social services or, possibly, by obtaining expert evidence. 7.2 The decision to make the child a party will always be exclusively that of the court, made in the light of the facts and circumstances of the particular case. The following are offered, solely by way of guidance, as circumstances which may justify the making of such an order – a) where an officer of the Service or Welsh family proceedings officer has notified the court that in the opinion of that officer the child should be made a party; b) where the child has a standpoint or interest which is inconsistent with or incapable of being represented by any of the adult parties; c) where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute; d) where the views and wishes of the child cannot be adequately met by a report to the court; e) where an older child is opposing a proposed course of action; f) where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child; g) where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court; h) where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic violence not capable of being resolved with the help of an officer of the Service or Welsh family proceedings officer; i) where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position; j) where there is a contested issue about scientific testing.
It is mooted however that it will be unusual for lay magistrates to retain jurisdiction where there is a proposal to make a child a party to proceedings pursuant to Rule 16.2. Moreover, when such an issue arises, unless there is a pressing need to do so, it may be preferable to re-allocate the case and leave the decision as to whether or not to make a child a party to the Judge at the first hearing. The appointment of a guardian for a child in specified proceedings is dealt with
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in rule 16.3 and may be undertaken either by application or of the court’s own initiative, the latter being the more normal course. In essence the court must appoint a children’s guardian unless satisfied that it is not necessary to do so in order to safeguard the interests of the child. Where the court refuses an application for such an appointment the court must record the refusal and the reasons for it and notify the parties accordingly (rule 16.3(3)). Where the refusal takes place of the courts own initiative the provisions of rule 4.3 must also be complied with. When making such an appointment the court will, of course, consider the appointment of anyone who has acted as guardian for the same child previously so as to provide continuity of representation (rule 16.3(4)). In the case of R (on the application of R and others) v Child and CAFCASS (2011) EWHC 1774 the court held that where the court so orders such an appointment, CAFCASS has a duty to appoint a guardian as soon as reasonably practicable, taking into account its general functions, duties and resources. Rule 16.5 states that a child who is a party to the proceedings but who is not the subject of those proceedings must have a litigation friend. Rule 16.6 prescribes the circumstances in which a child is able to conduct proceedings without assistance from a guardian or litigation friend in non-specified proceedings. In essence the court must appoint a children’s guardian unless satisfied that it is not necessary to do so in order to safeguard the interests of the child. This will apply where permission of the court has been obtained or the child’s solicitor considers that, having regard to the child’s level of understanding (irrespective of age), they are able to give instructions direct (rule 16.6(6)) It is thus a one-stage test. Chapter 5 of Part 16 sets out the requirements of a litigation friend when conducting proceedings on behalf of a child, the procedure for which is regulated by rules 16.8 – 16.11 Appointment of a litigation friend without a Court order is dealt with by rules 16.9 – 16.10. Appointment of a litigation friend by the court is dealt with in rules 16.11 and 16.13. The corresponding PD 16A, Part 2 deals with the duties and the procedural requirements of their appointment either without a court order or by application pursuant to the Part 18 procedure. 180
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Rule 16.8 sets out the general requirement that a child may only conduct proceedings through a litigation friend. Note the provisions of rule 16.8(3) which provides that any step taken in proceedings before a litigation friend is appointed will be of no effect unless the court directs otherwise. Rule 16.9 identifies the requirement of suitability for a person to be appointed as litigation friend to which rule 16.10 requires the filing of a certificate to that effect (FP9) In essence they must act “fairly and competently..........on behalf of the protected party” in the conduct of the proceedings and have “no interest adverse to that of the protected party” PD16A para 2.1 also provides that all steps and decisions taken on the protected parties behalf must be taken for their benefit. The prospective litigation friend must also undertake to pay any costs that the child may be ordered to pay in relation to the proceedings, subject to any right to be repaid from the assets of the child. The documents required by the rules must be filed before the litigation friend is able to take any steps within the proceedings. The above requirements however do not apply to the Official Solicitor. If there is a subsequent issue as to the suitability of the litigation friend the court may remove them and substitute another person in their place (rule 16.12) When the child attains majority, the appointment of the litigation friend comes to an end automatically (rule 16.15) Chapter 6 of Part 16 provides similarly in respect of the appointment of a children’s guardian in relation to specified proceedings. Note, in particular, the powers and duties of the children’s guardian contained in rule 16.20 whereby such guardian must act on behalf of the child with a view to safeguarding the child’s interests having particular regard to the principle of ‘no delay’ and the ‘welfare checklist’. The guardian is also under a duty to provide assistance to the court and to advise the Court on what is in the best interests of the child. Most of the duties of the children’s guardian and provisions as to how they are exercised are now contained in the accompanying practice direction (PD 16A, Part 3) as opposed to within the body of the rules themselves. 181
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In particular, a children’s guardian appointed under rule 16.3 must contact, or seek to interview, such persons as the children’s guardian thinks appropriate, or as the court directs, and obtain such professional assistance as is available which the guardian thinks appropriate or which the court directs to be obtained. Either the guardian or their solicitor (but not both) must attend all directions hearings unless excused (this is a change from previously where the children’s guardian had to attend, thus, where appropriate, freeing up a valuable resource provided the solicitor with conduct has full instructions or is able to obtain them over the telephone). They must advise the court as to competence, wishes and appropriate forum and timing for the proceedings and of the range of options available. The advice may be given orally or in writing, but if given orally must be noted by the court (PD 16A, para.6.7). Where the guardian decides to inspect local authority or adoption agency documents pursuant to CA 1989, s.42 or the Adoption and Children Act 2002, s.103 (which it is, of course, good practice to do), the guardian 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. For all those of us who represent guardians it is important to draw this duty of disclosure to their attention as well as to the attention of the local authorities. Worthy of mention is the fact that PD 16A para.6.8(a) provides that reports are to be filed according to the court’s own timetable and not, as previously, not less than 14 days before the hearing (active case management). Where the child subsequently instructs a solicitor direct, or intends to conduct the proceedings themselves and are capable of doing so, the guardian must immediately inform the court (rule 16.21). Chapter 7 sets out the requirements of a guardian appointed in non-specified proceedings pursuant to rule 16.4. This is supplemented by PD16A paras 7.1 – 7.19 which sets out the circumstances where a child should be made a party, the appointment of a guardian and their corresponding duties. It should be noted that paragraphs 7.1 and 7.2 stipulate that the Court should hold back from joining a child unless there is “ an issue of significant difficulty”. Included in the list of circumstances warranting joining a child as a party in private law proceedings is the recommendation of a Children and Family Reporter, or, if the initiative does not come from CAFCASS, requiring the Court to cause enquiries to be made of CAFCASS as to whether a CAFCASS guardian is required once the child has 182
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been made a party. Consideration should be given to appointing an officer of CAFCASS in the first instance. Rule 16.24(1) (a) allows a solicitor to act as both solicitor and guardian in appropriate circumstances. Where the guardian appointed is from CAFCASS then the additional duties as required by PD16A paras 6.1 – 6.11 apply. Applications for the appointment of a private law guardian must be made pursuant to FPR 2010, Part 18 and be supported by evidence. It is to be noted that private law guardians are only to be appointed in cases which involve an issue of significant difficulty e.g. an ‘intractable contact dispute’ (see PD 16A paragraph 7.2 set out earlier). Other options must be considered first. The criteria set out at para.7.1 of PD 16A are in similar terms to the previous practice direction regulating the appointment of guardians, namely asking CAFCASS to carry out further work, making a referral to social services or obtaining expert evidence. PD 16A, para.7.2 gives guidance by way of examples which might justify the making of such an order. Again, any step taken before a child has a children’s guardian will be of no effect unless the court subsequently ratifies it (rule 16.23(3)). The powers and duties of such a guardian and the exercise of those powers is set out in PD 16A Part 4, Section 2. The practice direction also goes on to set out the procedural requirements of being appointed, either without a court order or, pursuant to an application under the Part 18 procedure. Rule 16.24(5) sets out the mandatory requirements which all Court appointed Children’s Guardians must satisfy, namely that they are able to fairly and competently conduct proceedings on behalf of the child, have no interest adverse to that of the child and provide an appropriate undertaking as to costs. Rule 16.25 sets out how to apply to remove a children’s guardian in a private law case for which purpose the Part 18 procedure must be used. Evidence must also be filed in support setting out the reasons for the order sought and, in circumstances where a new Guardian is proposed in substitution for the existing one, must satisfy the requirements as to consent to act, an ability to act fairly and competently in conducting the proceedings on behalf of the child, have no interest adverse to that
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of the child and provide an appropriate undertaking as to costs (PD 16A paras 7.14, 7.17 and 7.18) Chapter 8 sets out the duties of a solicitor acting for a child either through the children’s guardian or directly for the child. Such solicitor must act in accordance with instructions relayed from the children’s guardian unless the child’s instructions conflict with those of the guardian and the child is able, having regard to their level of understanding, to give instructions direct. Before the solicitor makes such a decision, however, the views of both the guardian and the court must be sought first (rule 16.29(3)). Furthermore, when giving permission for a child to instruct a solicitor directly in private law proceedings, the court no longer has to discharge the children’s guardian. In cases where a solicitor is without instructions from the Guardian then they must act in a manner which furthers the child’s best interests (rule 16.29(5) Where the court terminates the appointment of a solicitor or children’s guardian the court must provide their reasons for doing so and record them (rule 16.29(9)) Note the provisions of rule 16.33 whereby any report from a children and family reporter appointed is confidential and the ‘officer’ (person preparing the report) may be questioned by a party about it, be it oral or written. Chapters 9, 10 and 11 set out the duties of a reporting officer, children and family reporter and welfare officer and parental order reporter. Again, provisions as to the exercise of their respective powers and duties is set out in PD 16A, Parts 5–7. As previously, the Children and Family Reporter does not need to attend hearings unless directed (PD 16A para 9.4) Part 8 of PD 16A sets out the duties (and how they should be exercised) of various officers of the service and local authority in the field of risk assessment pursuant to rule 12.34. Rule 12.36 provides that no one may be appointed as a CAFCASS, CFR or Guardian who has been the child’s local authority social worker within the preceding 5 years. Chapter 9 sets out the rules concerning the appointment of a reporting officer where it appears that a parent of a child is willing to consent to the placing of a child for adoption, the making of an adoption order or an order under s 84 of the Adoption and Children Act 2002.
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3.17
Part 17: Statements of truth
A Statement of truth is defined as a statement that a party to proceedings, witness or person who signs it “believes the facts stated in the document are true.” The benefit of using a statement of truth is to simplify the procedure and reduce the likelihood of delay without compromising the importance of statements being given truthfully. The rules provide for the possibility of contempt proceedings against a person who dishonestly makes a false statement in a document verified by a statement of truth (r 17.6). Part 17 is derived from CPR Part 22. The following documents in particular must be verified by a statement of truth:
•
a statement of case;
•
a witness statement (including narrative evidence within financial
applications);
•
a Financial Statement in support of an application for a Financial Remedy
(FPR 9.14 (2) (a));
an acknowledgement of service (in an application commenced using the
•
Part 19 procedure);
an expert’s report (note the specific wording contained in PD 25A para
•
3.3(i));
•
a certificate of service;
•
a Statement in support of an application for a decree nisi or conditional
order (FPR 7.19(4);
•
a statement of information pursuant to rule 9.26(1)(b);
•
replies to questionnaires in financial remedy proceedings.
However, this list does not include an application for a matrimonial or civil partnership order or an answer to such an application. Nor does a statement of truth apply to any document which needs to be verified by an affidavit for example applications made pursuant to Part 37. The various forms of statement of truth and who can sign them are set out in PD 17A and contained within the annex are some case-specific examples. (See para 2.1 for the relevant wording of the statement of truth when verifying a statement of case or application notice and para 2.2 for a witness statement). Moreover, if an applicant
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wishes to rely on the contents of an application form or notice as evidence, then it must be verified by a statement of truth. Although a failure to verify a party’s statement of case by a statement of truth still means that it will remain effective unless struck out, that party will not be able to rely upon it as their evidence; there is also a danger that the other party will apply to have such a statement struck out (rule 17.3(3)). However, such application is likely to be met by an ‘unless order’ in the first instance together with the usual costs sanctions (PD 17A, para.5.3). Similar rules apply to witness evidence (rule 17.4). Any person who has failed to verify a document with a statement of truth may find the court directing that it is inadmissible until such time as it is so verified (rule 17.5). A litigation friend acting on behalf of a party must endorse any document requiring a statement of truth to the effect that they believe the facts stated in it to be true. If the maker of the statement is illiterate, or is otherwise unable to read the document, it must contain a certificate by an ‘authorised person’ to the effect that:
•
The document has been read to the person signing it;
•
That they appeared to understand it and approve its contents as
accurate;
•
That the declaration of truth has been read to them;
•
That they appeared to understand the declaration and the
consequences of making a false declaration;
That they signed or made their mark in the presence of the person
•
authorised to certify accordingly.
An ‘authorised person’ is a person who can administer oaths and take affidavits but does not need to be independent of the parties or their representatives. Accordingly a Solicitor for such a party could ask another solicitor from within their practice to sign such a certificate. All that would be required would be for that person to read out the contents of the document and declaration of truth to the person whose document it is. Attention must be drawn to para.3.7 – 3.9 of PD 17A in relation to a legal representative signing a statement of case or application notice on a client’s behalf. The statement must refer to the client’s belief, not their own and they must:
•
Sign in their own name
•
State the capacity in which they sign; and
•
the name of their firm
•
Print their full name clearly beneath their signature.
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Where so signed the legal representative’s signature will be treated by the court as their statement that:
•
the client has authorised them to do so;
•
before signing they had explained to the client that by doing so they were
confirming their client’s belief that the facts contained within it were true;
and
•
they had informed the client as to the consequences of knowingly making a false statement.
Be warned! As for contempt proceedings for dishonestly making a false statement in a document verified by a statement of truth, recourse may usefully be had to the case law applying to the CPR equivalent. (See for example Lane v Shah DC (5/10/11) where sentences of 3 and 6 months were imposed against a claimant and their family for making false statements in a PI claim) In order to be satisfied as to a contempt of court, four elements have to be established beyond reasonable doubt:
1.
a false statement had been made;
2.
it was made in a document verified by a statement of truth;
3.
that at the time it was made the maker had no honest belief in its truth
and knew of its likelihood to interfere with the course of justice; and
it has (or if persisted would be likely to have) interfered with the course of
4.
justice in some material respect.
(Caerphilly CBC v Hughes (Contempt of Court) (6/12/05 Unreported) Where there are discrepancies between a statement so verified and other evidence it will not necessarily be the case that a contempt of court will have arisen. A person who makes a statement verified by a statement of truth will only be guilty of contempt if the statement was false and they knew it to be so when it was made. Moreover, for contempt to be established, not only must one know that what they say is false but that in doing so it is likely to interfere with the course of justice (Malgar Limited v RE Leach (Engineering) Ltd (2000) FSR 393) The standard of proof is that of the criminal standard and the benefit of any doubt must be resolved in the Respondent’s favour. It also has to be in the public interest for contempt proceedings to be brought the relevant factors being:
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•
that the case against the alleged contemnor is strong (Sony Computer
Entertainment v Ball (2004) EWHC 1192);
•
that the false statement was significant in the proceedings;
•
whether the alleged contemnor understood the likely effect of the
statement;
•
the use to which it would be put; and
•
the deterrent effect of contempt proceedings.
See Barnes v. Seabrook [2010] EWHC 1849 (Admin) and Walton v Kirk (Coulson J) (3/4/2009) PD 17A sets out in detail the practice to be followed in the event of an allegation of contempt of court arising in such circumstances.
3.18
Part 18: Procedure for other applications
Part 18, which is derived from CPR Part 23, replaces the previous reliance on RSC O.32 and CCR O.13 and is the standard way to commence proceedings or make an application either in the course of proceedings or after they have been concluded. It contains rules governing applications:
1.
within existing proceedings;
2.
commencing proceedings (i.e. pre-action applications and applications
for permission, save where prescribed elsewhere);
in connection with proceedings which have been concluded.
3.
In essence the procedure is that the applicant must submit an application in accordance with rule 5.4 stating what order is sought, their reasons, any written evidence in support and a draft order. Applications are generally made by ‘application notice’ (Form D11 unless the court dispenses with such a requirement (r 18.4(2)(b))) which replaces the use of summons and notice of applications, although for Children Act proceedings there is a revised Form C2. Addresses can be withheld by completing Form A65 or entering a serial number in adoption cases. PD 18A reiterates the overriding objective and the parties’ duties to further the same by emphasising that every application should be made as soon as it becomes apparent that it is necessary or desirable to do so (PD 18A, para.4.6). The following paragraphs of the practice direction deserve to be set out in full:
4.8
The parties must anticipate that at any hearing (including any directions hearing) the court
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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.
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.
Paragraph 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 consent of all parties;
(d)
with the permission of the court;
(e)
where paragraph 4.9 applies; or
(f)
where a court order, rule or practice direction permits.
From this it should be noted that to ensure that as many aspects of the case are dealt with at the same time such applications, wherever possible, should be made prior to any forthcoming hearing. However, nothing prevents a party from making an oral application if there is insufficient time available to file one. Applications for permission to apply for an order under CA 1989, s.8 should be made under this Part. Such applications can be dealt with without a hearing. However, if an application for permission is refused on paper then, upon the applicant’s request, the court must list the application for an ‘on notice’ hearing. The application notice must set out what order is sought and why and, if the applicant wishes to rely on matters set out in the notice as evidence, be verified by a statement of truth (r 17.2(3)). A draft of the proposed order must also be submitted together with any written evidence to be relied on (r 18.7). The application notice should also set out whether or not a hearing is requested or, in the alternative, whether or not the matter can be dealt with without a hearing or by way of a telephone hearing (see further below). Additional requirements in relation to application notices generally and certain specific types of applications are set out in PD 18A. PD 18A, para.5.1 gives examples of when an application may be made without notice which include amongst other things the following: 189
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•
Where there is exceptional urgency
•
Where the overriding objective is best furthered by doing so
Notwithstanding any request made by the applicant for disposal on paper or at a hearing, upon receipt of an application there is power for the court to deal with the same without a hearing (including dismissing it) pursuant to the court’s powers of active case management as well as directing the filing of additional evidence, before considering the matter further. If such a ‘without notice’ order is made then the order must, on the face of it, contain a statement of a party’s right to make an application to have it set aside or to vary its terms within seven days of service (rules 18.10(3) and 18.11). Furthermore, any order made without notice must be served together with the application notice to which it relates and any supporting evidence relied upon, unless the court directs otherwise (FPR 18.10(1)) On an ‘on notice’ application, service must be effected at least seven days before the hearing (14 days in cases of an application for an interim order) unless time is abridged (rule 18.8(4)). Informal notice should be given if the full seven days is not possible. An important innovation in the new rules is in relation to the specific provision for telephone hearings, which is detailed in PD 18A, para.8 and will usually only arise where all parties consent to a hearing being undertaken by such method. If a hearing is to be conducted by telephone then no advocate is allowed to attend in person unless agreed by 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. An interesting experience for lay magistrates! Note also the specific power of the Court to direct the filing and service of evidence in support of the application which is contained in PD 18A para 11.2. As for the conduct of hearings generally, the court may proceed in the absence of a party who has failed to attend or relist the application so as to afford the absent party an opportunity to attend (rule 18.12) Another practice which has been adopted from the CPR (albeit from the Small Claims Track) is that the parties are now able to agree for the court to dispose of an application based upon the written evidence only without a formal attendance at a hearing (rule 18.9(1)(b)). To take up this option the parties must inform the
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court in writing and confirm that all evidence that is being relied upon has been disclosed to each other. The court will then go on to decide the application on paper. (Anecdotal evidence suggests that this provision has had little take up within the family jurisdiction) Interestingly enough, no provision is made, unlike in the CPR, for the court to furnish the parties with the reasons for any decision taken when adopting such a course. There is also provision to the effect that where an application is dismissed and the court considers that such application was totally without merit, the court order must record that fact on the face of the order and, at the same time, give consideration as to whether or not it is appropriate to make a civil restraint order (rule 18.13). As indicated previously, this is a very important provision in controlling vexatious litigants and is an important part of the court’s armoury in controlling the use of continual unmerited applications particularly in, but not restricted to, children’s cases (rule 18.13). PD 18A paras 12.1 – 13.2 makes provisions for orders by consent. In essence an application for a consent order can be made by way of letter, but the parties should inform the court in writing that a hearing is not required and each should confirm that all evidence and other material on which he or she relies has been disclosed to the other parties to the application.
3.19
Part 19: Alternative procedure for applications
Part 19 mirrors very closely the procedure derived from CPR Part 8 and introduces an alternative simplified procedure for applications where Part 18 does not apply, there is no substantial dispute of fact or where there is no other form prescribed by the rules or practice directions in which an application can be made. An appropriate application might be where an order or direction is sought which is unopposed by the parties before the commencement of proceedings. Forced marriage applications and applications for permission to appeal will always fall to be dealt with under this Part. The basic procedural requirements are as follows:
•
Where the respondent is named in the application, an acknowledgement
of service is required together with any written evidence relied upon.
If the Respondent fails to file an acknowledgement, although they are not
•
precluded from attending the hearing, they can take no formal part in it
unless the court gives permission.
If the Respondent contests the usage of the Part 19 procedure, then they
•
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should say so in their acknowledgement and set out their reasons.
•
Upon receipt of the acknowledgement the court will give directions.
•
Any written evidence relied upon must be both filed and served.
Where an applicant uses the Part 19 procedure, the application form (Form FP1) referred to in PD 5A must be used. Applications are commenced by an application verified by a statement of truth which must state:
•
that the Part 19 procedure applies;
•
what, if any, enactment it is made under;
•
the question which the applicant wishes the court to decide;
•
the order the applicant is seeking;
•
the legal basis for the application.
At the same time as issuing the application the applicant must also file and serve any written evidence upon which they intend to rely. The respondent must then file and serve an acknowledgement (Form FP5 referred to within PD 5A) together with written evidence within 14 days. Note that the supporting practice direction PD 19A indicates that such acknowledgement can be given in an informal document such as a letter as opposed to the prescribed form. The acknowledgement must state whether or not the application is contested and, if the respondent seeks a different order from that set out in the application, what that order is. If the respondent fails to file such an acknowledgement together with their written evidence, then although they are not precluded from attending the hearing, they will be unable to play any part in it without the court’s permission. It should be noted that although a respondent must file and serve their written evidence when filing an acknowledgement, there is no provision for filing an answer to the application. The provision as to the filing of written evidence thus comes at an earlier stage, namely at the outset of the proceedings, thus shortening the overall procedure. Any written evidence not so filed and served in accordance with rule 19.7 cannot be later relied upon unless permission is granted by the court. It is expected, however, that the court will readily grant such permission as required on condition that any defect is remedied. Although rule 19.7 sets out the timescales for filing and serving such written evidence;
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permission can be sought for an extension of time and to file additional evidence. As far as extensions of time are concerned, the parties are able to agree these between themselves by consent provided that such consent is in writing. Where the agreement relates to an extension of time in so far as the respondent is concerned, such written agreement must be filed at one and the same time as the acknowledgement itself (therefore be proactive and act quickly) and must not extend the time to more than 28 days after the date the service of the respondent’s evidence is due. Any extension beyond this will require the court’s permission and cannot therefore be done solely between the parties themselves, even by consent. In so far as the applicant is concerned, again any extension must not extend the time beyond 28 days after the service of the respondent’s evidence. The corresponding CPR case law on such written agreements no doubt will prove instructive. For example, in Ian Thomas v. Home Office [2006] EWCA Civ 1355, it was held that such written agreement of the parties did not have to be in a single document and could be constituted by an exchange of letters. An oral agreement that is later confirmed in writing by both sides is also within the concept of a written agreement. An oral agreement between two solicitors subsequently recorded in a letter sent by one solicitor to the other, but not answered by the other however, cannot be said to constitute a written agreement of the parties. What is required is a document or exchange of documents intended to constitute the agreement or to confirm or record the agreement. It will not be sufficient for one solicitor merely to communicate to a third party what has allegedly been agreed. Nor is it sufficient for each side to note their oral agreement, unless the notes are exchanged. Thus, one must have:
•
one document signed by both sides; or
•
an exchange of documents whereby one party sets out the agreement
and the other then expressly confirms that agreement.
The rules also provide for a respondent to contend that the Part 19 procedure should not be used on the grounds that there is a substantial dispute of fact, or the use of the procedure is not required or permitted by a rule or practice direction (rule 19.9). The court also has power itself to direct that the application shall be treated as not having been issued under the Part 19 procedure if it is felt appropriate to do so, so as to enable the application to continue despite the fact that the Part 19 procedure may have been used incorrectly (rule 19.1(3)).
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Upon receipt of any acknowledgement and written evidence (or after expiry of the period in which such acknowledgement should have been filed), the court will proceed to give directions as to the future management of the case either of its own motion or at a hearing fixed for such purpose. It may be useful therefore to try and agree directions and file them with the court so as to gain some control and input in the decision-making process. On the occasion of the hearing the court can either dispose of the case (if relatively straightforward) or give case management directions.
3.20
Part 20: Interim remedies and security for costs
Part 20 (which provides for two distinct aspects, namely interim remedies and security for costs) derives from CPR Part 25. This part does not however apply to the following:
•
CA 1989, s.48 (discovery orders);
•
CA 1989, s.50 (recovery orders);
•
FLA 1986, s.33 (disclosure of a child’s whereabouts);
•
FLA 1986, s.34 (recovery order).
Of particular note is rule 20.2(1) (c) (v) which provides the court with the power to order ‘the sale of relevant property which is of a perishable nature or for which for any good reason it is desirable to sell quickly’. “..for instance the assets may include the tail end of a long lease, the market value of which is rapidly diminishing; or … shares in a private company for which an offer has been made on very favourable terms… Also, the court may have an inherent jurisdiction to direct the movement of moneys in a form which will produce income which can be the subject of an order for interim maintenance by, for example, requiring moneys to be placed on an interest-bearing deposit account.”
Wicks v Wicks [1998] 3 WLR 277 In this eventuality, an interim sale can be ordered, although the rules do not provide for an interim distribution. It is a moot point as to whether this reflects an extension of the court’s powers in light of Miller-Smith v. Miller-Smith [2009] EWCA Civ 1297 as one must be careful not to confuse such interim remedy (which is intended to protect a claim) with that of a final financial remedy (which is for meeting it). Note also FPR rule 20.2(1) (d) permits the court to authorise a party to enter property in the possession of the other party for the purposes of carrying out an order for sale. It does not, however, provide the court with the power to order that possession of
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that property is given up for which resort will need to be had to rule 9.24(2). Further remedies also worthy of mention include interim injunctions, freezing injunctions, interim declarations, search orders under s.7 of the Civil Procedure Act 1997 and orders for disclosure of documents or inspection of property against a nonparty pursuant to the Supreme Court Act 1981, s.34 (now known as the Senior Court Act 1981) and the County Courts Act 1984, s.53. However, the fact that a particular kind of interim remedy is not listed does not affect any power that the court may have to grant that remedy (rule 20.2(3)). Only the High Court has jurisdiction to grant a ‘search order’ and ‘freezing injunction’ however (PD 20A para 1.2) As for the requisite guidance on making an application, reference must be had to paras.2.1–2.4 of PD 20A. Particular note must also be taken of the need to file a draft of the order sought with the application notice and supporting evidence including having available an electronic version for the usage of the court (See the suggested draft template order appended to the judgement in UL v BK (2013) EWHC 1735 for use in family proceedings) Paragraphs 3.1–3.4 of PD 20A set out the evidential requirements for applications for interim injunctions as well as for search orders and freezing injunctions, in particular it is vitally important for an affidavit or witness statement in support of a freezing order to “indicate the source for any matters of information and belief” (PD 22A) Paragraphs 6.1 – 6.9 of PD 20A sets out the detailed requirements of search orders in relation to the preservation of evidence and property and the concept of the “Supervising Solicitor.” An interim remedy may be applied for at any time right up to the point after judgement has been given (but not after a final order has been made), including even before the commencement of proceedings, provided the matter is urgent or it is otherwise desirable in the interests of justice. If such an interim remedy is granted before the instigation of proceedings, the court will go on to give directions concerning the issue of the substantive application and any supporting evidence. Thus, prior to the issue of proceedings, the court can, for example, order the inspection, detention, custody or preservation of ‘relevant property’ thus protecting assets and or documents or otherwise preserving the status quo (FPR 20.2 (1) (c) (i) & (ii) & 20.3) The subject matter of such an order is defined as ‘property…which is the subject of an application or as to which any question may arise on an application’
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(FPR 20.2 (2)) These provisions can be extremely useful where there are concerns that assets or documents may be hidden or dissipated as soon as financial remedy proceedings are issued. The court, of course, will require clear evidence as to the necessity of such an order. The Part 18 procedure must be used (Form D 11). As far as satisfying the criteria as to whether such an order is desirable ‘in the interests of justice’ is concerned much depends on the facts of each case. An useful overall Summary of the principles and safeguards in relation to such orders is set out in UL v BK (2013) EWHC 1735:
•
The applicant must show, by reference to clear evidence, an unjustified dealing with assets
(which would include threats) by the respondent giving rise to the conclusion that there is
a solid risk of dissipation of assets to the applicant’s prejudice.
The evidence in support of the application must depose to clear facts. The sources of
•
information and belief must be clearly set out.
Where the application for a freezing order is made ex parte the applicant has to show that
•
the matter is one of exceptional urgency. Short informal notice must be given to the
respondent unless it is essential that he is not made aware of the application. No notice
at all would only be justified where there is powerful evidence that the giving of any notice
would likely lead the respondent to take steps to defeat the purpose of the injunction, or
where there is literally no time to give any notice before the order is required to prevent the
threatened wrongful act. The order of the court should record on its face the reason why it
was satisfied that no or short notice was given.
•
Where no notice, or short informal notice, is given the applicant is fixed with a high duty of
candour. Breach of that duty will likely lead to a discharge of the order.
Where no notice, or short informal notice, is given the safeguards assume critical
•
importance. The safeguards are set out in the standard examples for freezing and search
orders. If an applicant seeks to dis-apply any safeguard the court must be made
unambiguously aware of this and the departure must be clearly justified. The giving of
an undertaking in damages, whether to the respondent or to an affected third party, is an
almost invariable requirement; release of this must be clearly justified.
As far as interim remedies post judgement are concerned, these are useful in circumstances where one needs to protect the disposal of assets as a prelude to enforcement of an order. An interim remedy may also be applied for without notice if there are good reasons for doing so, but this must be set out in the supporting evidence (rule 20.4) and regard had to the warnings given in cases such as Re W (Ex Parte Orders (2000) 2 FLR 927 and the guidance given in ND v KP (Freezing Order: Ex Parte Application) (2011) EWHC 457 and FZ v SZ and ors (Ancillary Relief: Conduct: Valuations) (2011) 1 FLR 64 and B v A [2012] EWHC 3127. 196
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“Anton Piller and Mareva orders have rightly been described as the nuclear weapons in the court’s armoury and as being at the very extremity of the court’s powers. To reduce the risk of abuse, stringent safeguards have been put in place to protect, as far as possible, the interests of the absent respondent. It is worth remembering what some of those safeguards are. First, an order will not be made unless the applicant produces evidence which shows that he has a very strong case. Second, the evidence must be served on the respondent with the order. Third, the order always includes a cross-undertaking in damages. Fourth, the order includes an express right to the respondent to apply to discharge on short notice. Fifth, the order must included a return date so that the issue can be brought back for review inter partes as soon as possible. Sixth, in Mareva orders there is an explicit provision allowing the respondent access to sufficient of his funds to pay his reasonable legal expenses—a provision which ensures that he has the financial resources available to fight for the discharge or modification of the order.”
(The Bank v A Ltd & Ors [2000] EWHC J0517-13) “….a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction…..or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act…..even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none……if the rule is not generally enforced, plaintiffs will be encouraged to make a tactical use of the legal process which should not be allowed.”
(National Commercial Bank Jamaica v Olint (2009) UKPC 16) “where the application for a freezing order is made exparte the applicant has to show that the matter is one of exceptional urgency. Short informal notice must be given to the respondent unless it is essential that he is not made aware of the application. No notice at all would only be justified where there is powerful evidence that the giving of any notice would likely lead the respondent to take steps to defeat the purpose of the injunction….cases where no notice at all can be justified are very rare indeed.”
(UL v BK (2013) EWHC 1735) In essence, no order should be made without notice unless there is very good reason for departing from the rule that notice must be given. Accordingly, an application for without notice relief should only be made where there is clear and positive evidence that to go on notice would lead to irretrievable prejudice to the applicant e.g.:
•
Where the giving of notice would defeat the object of the application
and of the making of the order; or
There was literally no time to give notice of the application before the
•
remedy was required (even then, some notice is better than none at all)
If an applicant chooses to make a without notice application, they have a high duty
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of candour and they must provide to the court an objective, balanced, fair and particularised account of the events leading up to the application which support the assertion of the likelihood of dissipation of assets with the intention of defeating the applicant’s claim including what the case of the Respondent is likely to be. Having said that case law from the civil jurisdiction points to technical breaches such as where the claimant making a without notice application for a freezing injunction failed to set out its reasons for not notifying the defendant, did not justify the discharge of the injunction where there were no adverse consequences to the defendant and where the court was satisfied that there was a good arguable case and a real risk of asset dissipation. (Shoe Logic Ltd v Neuls (2014) QBD Seymour J 17/02/2014) It should be noted that, notwithstanding the move towards using statements of truth in family proceedings, applications for freezing orders and search orders must still be supported by affidavit evidence (PD 20A para 3.1 – Interim Remedies), although it is difficult to see the rationale for this apart from the draconian effect of such an order and the potential infringement of a party’s art.8 rights (i.e. European Convention on Human Rights – the right to respect for private and family life). Urgent applications and applications without notice are dealt with in para.4 of the practice direction and cover the procedural requirements of without notice applications dealt with at a hearing, both after issue of such an application (para.4.3) and before issue (para.4.4) Note that unless essential, some notice, albeit informal, is better than none at all (para.4.3(c)). PD 20A FPR 2010 states that “except in cases in which it is essential that the respondent must not be aware of the application, the applicant should take steps to informally notify the respondent of the application”. “Should” in this context means ‘must’. (UL v BK (2013) EWHC 1735) Recourse of course should be had to the many utterances from case law on the issue of without notice applications more particularly B v A (2012) EWHC 3127:
•
Those who seek without notice orders are under a duty to make the fullest
disclosure of all relevant circumstances known to them;
When an injunction is granted there is a duty to notify the respondent as
•
soon as possible of the evidential basis;
Undertakings are required from the applicant to issue and serve the
•
proceedings on the respondent and, if an application is made on unsworn
evidence, to file and serve sworn evidence as soon as possible.
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•
There is an obligation to set a return date as soon as possible.
•
The application should provide a balanced account of events including
what the respondent’s case may be;
If possible, any factual assertions should be supported by independent
•
evidence;
•
There should be an explanation as to why the application is being made
without notice and how service is to be effected;
•
If possible, the applicant should be present in person to verify information;
•
If oral information is put before the Court that should immediately be
incorporated into sworn evidence.
Paragraph 4.5 deals with applications made outside normal business hours (urgent telephone applications) and para.5.1 (b) deals with what an injunction order should contain which will include undertakings to:
•
pay any damages which the respondent might sustain (this can also
include a similar undertaking to a third party who might suffer loss as a
result of the order); and
where an order is obtained without notice, arrange service upon the
•
respondent of the application notice, evidence in support and any order
made including return date; and
•
where an order is obtained before the formal issuing of an application, to
issue and serve the application within a specified time.
Finally, paras.8.1 and 8.2 of the practice direction make provision in respect of injunctions against third parties. Note, in particular, para.8.2 in respect of the duty to supply information requested by the third party and to do so promptly. If the application is stayed, other than by way of an agreement between the parties, the interim injunction will be set aside unless the court orders otherwise. Thus, in an appropriate case, an application should be made to continue the order – a possible trap for the unwary! (FPR 20.5) A respondent to any application for an interim remedy may also apply for security for costs of the proceedings. In so far as security for costs is concerned, such an application can only be made by a respondent and must be supported by written evidence. The importance of the remedy lies in the fact that it protects the costs recovery position of the respondent in respect of a potentially ‘dodgy’ application. The order as to security for costs will determine the amount of the security and direct the manner and time in which it must be given. The conditions to be satisfied before 199
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making such an order are set out in rule 20.7(2). In essence, the court may make an order for security for costs if it is just to do so and one or more of the following apply:
(a)
the applicant is–
(i)
resident out of the jurisdiction; but
(ii)
not resident in a Brussels Contracting State, a Lugano Contracting State or a
Regulation State, as defined in section 1(3) of the Civil Jurisdiction and Judgments
(b)
Act 1982 or a Member State bound by the Council Regulation;
the applicant has changed address since the application was started with a view to
evading the consequences of the litigation;
the applicant failed to give an address in the application form, or gave an incorrect
(c)
address in that form;
(d)
the applicant has taken steps in relation to the applicant’s assets that would make it
difficult to enforce an order for costs against the applicant.
Even then, the Court should only accede to such an application if, having regard to all the circumstances, it is just to make such an order. Such provisions, however, do not apply to the costs of proceedings under the Hague Convention.
3.21
Part 21: Miscellaneous rules about disclosure and inspection of documents
This Part is based upon a compressed version of CPR Part 31 and is supported by PD 21A. Three aspects of disclosure are dealt with by the rule:
•
Disclosure and inspection of documents (r 21.1)
•
Disclosure against third parties (r21.1)
•
Public interest immunity (r 21.3)
For the purposes of the rule a party discloses a document by stating that it exists or has existed. ‘Document’ means anything in which information of any description is recorded (FPR 21.1(3) (a)) which is identical to its CPR equivalent in Rule 31,4. ‘Copy’ means anything on to which information recorded in the document has been copied, by whatever means and whether directly or indirectly. This is a wide description and encompasses information recorded electronically. In proceedings, other than for a financial remedy, disclosure will now normally be 200
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by way of list (but only where directed) or questionnaire, setting out the existence of documentation material to the proceedings which a party is aware of or which has been in their control. This is known as ‘standard disclosure’ – a term borrowed from the CPR. (FPR 2010 PD 21A para 2.1) This is contrasted with ‘specific disclosure’ which is where, pursuant to a court order, a party must disclose documents, or a class of documents, by carrying out a search and disclosing any documents located as a result of such search. The results of such a search must also specify those documents that the respondent does not have in their control or claims the right to withhold (e.g. public interest immunity/privilege). However, the FPR makes no specific provision governing the issue of privilege. Tchenguiz-Imerman v Imerman (2012) EWHC 4047 held therefore that one therefore needs to consider the provisions of CPR 31 for such purpose and that documents in respect of which privilege is claimed should be identified with an adequate description to enable the other party to assess the propriety of the claim but stopping short of disclosure, either directly or indirectly, of the contents of the document itself. In so far as the duty of disclosure itself is concerned, a reasonable search should be tailor made to the value and significance of the likely product of such a search. If the value of such evidence is not likely to be high, then a ‘reasonable search’ should be correspondingly limited (Nichia Corporation v. Argos Ltd [2007] EWCA Civ 741). The extent of discovery thus has to be assessed on a case-by-case basis. The judge should consider the features of the case with a view to making an order tailored to achieving a just outcome, which includes limiting costs as far as possible (Fiddes v. Channel 4 Television Corporation [2010] EWCA Civ 516). To that extent the court will be guided by the overriding objective. The overriding principle is that disclosure will be restricted to what is necessary in the individual case and relevant to the issues that the Court must decide. The court will consider all of the circumstances of the case and in particular proportionality. The relevance of the documents requested will also be analysed by reference to the issues in dispute between the parties and must be clearly and carefully defined. Note that within matrimonial and civil partnership proceedings the court may also order disclosure to clarify any matter in dispute.
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Rule 21.2 makes provision for disclosure by a person who is not a party to the proceedings, application for which can be made with or without notice. However, an order may only be made where such disclosure is necessary in order to dispose fairly of the proceedings or to save costs. This of course is similar to the ‘inspection appointment’ previously utilised within ancillary relief proceedings but is now extended to all family proceedings (Note that the terms ‘inspection appointment’ and ‘production appointment’ are no longer used.) An order for disclosure, however, cannot compel a person to produce a document which that person cannot be compelled to produce at a final hearing and if the applicant is unable to surmount this hurdle the application is bound to fail. Furthermore, notwithstanding that the test set out in rule 21.2(3) is subsequently satisfied, there is still a residual discretion on the part of the court as to whether or not to make such an order. It is at this stage that broader considerations come into play, such as where the public interest lies and whether or not such disclosure would infringe third-party rights in relation, for example, to privacy or confidentiality. In such circumstances, the court must conduct a careful balancing exercise (see rule 21.3). FPR 21.3 contains the procedure by which a person may obtain an order permitting them to withhold inspection and disclosure of documents. The rule distinguishes between withholding inspection on grounds of “damage (to) the public interest” (public interest immunity) and “to claim a right …to withhold inspection of a document” (confidentiality/privilege) If this is on the basis of public interest immunity then a confidential without notice application will be required from the applicant (or for the court to raise the issue of its own initiative) in the first instsance (r 21.3(1)) If the objection is on any other basis then that basis must be set out in writing to the party requesting disclosure (usually by way of a list of documents) thereafter any party may apply to the court to determine the issue, such application being supported by evidence (r 21.3 (3) & (4)) The court in exercising such discretion may require the document to be produced to the court before determining the application although such power should be exercised sparingly (C v C (Privilege) (2008) 1 FLR 115) As for the exercise of the discretion generally, reference must be had to the comments set out in Re B (Disclosure to Other Parties) (2001) 2 FLR 1017):
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“It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it….In most cases the needs of a fair trial will demand that there be no restrictions on disclosure.”
As for the objection on the basis of public interest immunity: “It is a general rule of law founded on public policy and recognised by Parliament that any documentary evidence may be withheld or an answer to any question may be refused on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest….now referred to as “public interest immunity”. The fundamental problem is one of balancing or reconciling the two kinds of public interest which may clash; on the one hand, there is the public interest that harm should not be done to the nation or the public service by the disclosure of certain documents, and on the other hand there is the public interest that the administration of justice should not be frustrated by the withholding of documents…..if justice is to be done.”
(A Chief Constable v YK, RB, ZS, SI, AK and MH (2010) EWHC 2438) In line with the principle of aligning procedures across all tiers of court, this rule will also apply to family proceedings in magistrates’ courts which will no doubt be a welcome and long overdue addition to their powers.
3.22
Part 22: Evidence
This rule derives from CPR Part 32. Note that despite the increasing use of statements of truth, affidavits are still required in respect of contempt proceedings, and where otherwise specified. There are also now detailed provisions for the standard format of witness statements and affidavits (see later). Rule 22.1 sets out the court’s powers to control evidence which includes power to give directions as to:
•
the issues upon which evidence is required;
•
the nature of the evidence required to decide those issues;
•
the way in which such evidence is to be placed before the court.
The court also has the power to exclude evidence which would otherwise be admissible, although it is submitted that such a rule is ultra vires, particularly in so far as it appears to permit the exclusion of otherwise admissible evidence, unless, of course, such exclusion, as part of the court’s powers to manage its own proceedings, relates to exclusion on the basis of the evidence being irrelevant to the issues before 203
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the court. The normal rule is that a person’s witness statement at a final hearing will stand as their evidence in chief save that, with permission of the court, the witness may be allowed to amplify upon it or give evidence in relation to new matters which have arisen since its service, thus expressly limiting the extent of examination in chief (Rule 22.6(3)) In cases where a party has failed to serve a witness statement in accordance with a direction from the court, then such witness may not be called to give oral evidence at a hearing without permission from the Court for which the Court will be guided by the overriding objective and the checklist set out in r 4.6 (1) (relief from sanctions). The court also has the additional power of limiting the extent of cross-examination thus giving the court wide powers of controlling the proceedings before it. Using these powers positively enables the court to limit evidence at hearings thus furthering the overriding objective of saving expense and allotting to the case an appropriate share of the court’s resources. (FPR r 1.1 (d) and (e)) (Examples where this can be used effectively can be seen in the case of Re C (Proceedings: Case Management) (2012) EWCA Civ 1489 and where such powers can be misused in the case of Re B (Case Management) (2012) EWCA Civ 1742) At a final hearing, evidence will normally be presented to the court orally (although note FPR 22.3 whereby the Court may allow a witness to give such oral evidence through video link or other means) at any other hearing, evidence is to be presented by written evidence verified by a statement of truth (note the wording of a statement of truth that needs to be contained in such a witness statement (see further PD 22A, para.6.4)). There are, of course, exceptions to this rule, more notably public law Children Act proceedings such as secure accommodation, interim care and supervision orders. There is also a power to utilise witness summaries in cases where a witness statement is unable to be obtained; however, its usage in family proceedings remains rare (rule 22.9). One potential example might be where an urgent application is pending and instructions can only be taken over the phone or on a brief attendance where full instructions cannot be taken (e.g. an application for an interim care order) or a draft statement has been prepared but not yet approved by the client or the client has failed to return a signed statement or a witness is currently out of the country or otherwise unavailable. In a further attempt to reduce the disputed facts in a case, a notice to admit facts can also be served (FPR r 22.15) No form is prescribed for this and there is no requirement for filing such notice with the court. 204
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Any admission in answer to the notice can only be used in the proceedings in which it was served (r 22.15(3) and can only be withdrawn with the permission of the Court (r 22.15(4)) Rule 22.16 provides that if a party discloses a document then the party provided with the disclosure is deemed to admit to its authenticity unless they serve a notice requesting the document to be proved at the final hearing. Rule 22.17 provides that notarial acts and instruments can be received in evidence without further proof as to their authentication unless the contrary is proved. An example of this is Lukandwa v Birungi [2011] EWCA Civ 1530 where, in nullity proceedings, it was held that the Recorder had fallen into error in failing to appreciate the significance of a State-authenticated marriage certificate. There should have been a presumption in favour of the validity of the document and the information that it authenticated which it was up to the opposing party to challenge. Rule 22.19 regulates the inspection of witness statements used in matrimonial and civil partnership proceedings. Inspection will normally be allowed, subject to any direction requesting that such witness statements should not be open for inspection, for which the court will be guided by the provisions of rule 22.19(4). In so far as affidavit and witness statements are concerned, such documents must comply with the requirements set out in PD 22A as to:
•
heading and format (paras.3.1–3.3);
•
content (paras.4.1–4.5);
•
exhibits (paras.9.1–13.4); (See paragraph 3.10 earlier)
•
jurat (paras.6.1–6.3).
The front page and back sheet of an affidavit or statement and the front page of each exhibit should include in the top right hand corner the following information:
•
The party on whose behalf it is made;
•
The initials and surname of the maker;
•
The number of the affidavit/statement in relation to its maker;
•
The identifying initials and number of each exhibit referred to; and
•
The date made.
As to the content the Affidavit/Statement must:
•
Be produced on durable quality A4 paper with a 3.5 cm margin;
•
Be fully legible and be typed on one side of the paper only;
•
Be bound securely in a manner which will not hamper filing or, where
secure binding is not possible, each page should be endorsed with the 205
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case number and should bear the initials of the maker and, in case of an
affidavit, the person before whom it is sworn;
•
Have consecutively numbered pages as a separate document;
•
Be divided into numbered paragraphs;
•
Have all numbers, including dates, expressed in figures; and
•
Give the reference to any document or documents mentioned, either in
the margin, or in bold text in the body of the affidavit/statement.
(PD 22A Para 3.3) Any document used in conjunction with an affidavit/statement should be
•
Shown to and verified by the maker, and remain separate from the
affidavit/statement as an exhibit (“there is now shown to me
marked…………”) and
•
Identified by a declaration of the person before whom the affidavit/ statement was sworn.
Where a person is unable to read or sign a statement/affidavit, note the provisions of PD 22A, paras.7.1–7.4 and Annexes 1 and 2 in relation to the requirements of properly executed affidavits, affirmations and witness statements. In essence, the person before whom the affidavit is sworn must certify in the jurat that the person has read the affidavit to the deponent and that they appeared to understand it and made their mark in that person’s presence. Note, where the maker makes more than one affidavit/statement with exhibits, the numbering of the exhibits should run consecutively throughout and not start again with each new statement or affidavit. These requirements are important because if they are not complied with the court may refuse to admit the evidence and may also refuse to allow the costs arising from its preparation. However, having said that, it seems unlikely that minor non-compliances will lead to the refusal to admit such evidence, particularly where litigants in person are concerned. Again, reference also must be had to the overriding objective, proportionality and the apparent saving provision in r 22.1(3): “The Court may permit a party to adduce evidence, or to seek to rely on a document, in respect of which that party has failed to comply with the requirements of this Part.”
As for affidavits/statements generally, pursuant to para.4.3 of PD 22A, the affidavit/ statement in particular must indicate which of the statements within it are made from the deponent’s own knowledge and those which are matters of information or belief and, in relation to the latter, the source for such matters of information or belief In so far as preparation of witness statements or Affidavits from witnesses who do 206
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not speak English are concerned para 8.2 of PD 22A provides that such documents should be prepared in the witnesses own language before being translated into English. Note that it is a requirement that the translator must sign the translation to certify that it is accurate. This contrasts with the CPR equivalent which provides that the translator must make and file with the court an affidavit verifying the translation and exhibiting both the translation and a copy of the foreign language affidavit (CPR PD 32 para 10.2) In addition the following basic principles and guidance should also be observed:
•
There must be clarity and an explanation about the process by which the
statement has been created.
The Solicitor instructed should be fully involved and not subcontract to the
•
client.
•
The Solicitor should question the provenance of a statement in English
from a non-English speaker and not simply use the document as evidence.
The witness should be spoken to using an interpreter and a draft statement
•
prepared in the native language for the witness to sign and read.
A solicitor fluent in the language was permitted to act as interpreter.
•
A litigant in person should use a certified interpreter when preparing a
statement.
•
Where a witness could not read and write in the native language,
the interpreter had to read the statement to the witness and set that out in
the translator’s affidavit.
•
A completed statement in the native language should be translated by a
certified translator and confirmed by the translator.
•
A witness giving live evidence should be provided with a copy of the
original statement in the witness’s own language, and the English
translation, well in advance of the hearing.
•
Where a statement has been prepared abroad in compliance with the
country’s laws, a certified translation of that statement should be filed with
the original document.
(NN v ZZ & Othrs (Fact-finding: Stranded Spouse) (2013) EWHC 2261) As a side note, it is perhaps also worth pointing out that para 1.6 of PD 22A is suggestive of the possibility that the court may itself direct the filing of affidavit evidence as opposed to, or in addition to, any evidence contained in a witness statement. PD 22A also provides extensive guidance on the use of video conferencing in the family courts which is set out in Annex 3. Also worthy of note is the fact that witness statements may only be used for the 207
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purposes of the proceedings in which they are served. Finally, note the provision as to service of a notice to admit facts which must be served no later than 21 days before the final hearing (rule 22.15).
3.23
Part 23: Miscellaneous rules about evidence
Part 23 is derived from CPR Part 33 and controls the use of hearsay, plans and photographs as evidence. The intention to rely on hearsay evidence at a hearing must be indicated, with reasons in support and, principally, at the time of service of the witness statement to be relied upon (rules 23.2 and 23.3) The rules themselves distinguish between notices of hearsay evidence expected to be given at a ‘final hearing’ (r 23.2(1) and notices ‘in all other cases’ (r 23.2(3) :
•
In the case of a final hearing, such notice is given by an indication to do
so or by stating that the witness will not be called.
In all other cases, notice is given by stating what evidence is relied upon
•
and why the witness will not be called.
A Notice in relation to hearsay evidence is not however required in relation to interim hearings or for witness statements and affidavits that do not themselves contain hearsay evidence (r 23.3) Failure to give such notice, however, does not affect the admissibility of that evidence (Civil Evidence Act 1995 s 2(4)) Note that, in accordance with s 4 CEA 1995, in estimating the weight to be given to such evidence, regard may be had as to whether:
•
it was reasonable and practicable for a party to have produced the
maker of the original statement as witness;
the original statement was made contemporaneously with the
•
occurrence or existence of matters stated;
•
any person involved had any motive to conceal or misrepresent matters;
•
the original statement was edited or made in collaboration with another
or for a particular purpose;’
the circumstances in which the evidence was adduced suggests an
•
attempt to prevent a proper evaluation of its weight.
Any party to whom such notice is given may apply, using the part 18 procedure, for an order for the person concerned to attend court for cross-examination purposes. Note that in proceedings in the family court before a lay justice or lay justices, it is the 210
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justice’s clerk or the court who is responsible for keeping a note of the substance of the oral evidence given at a hearing or a directions appointment (rule 23.9).
3.24
Part 24: Witnesses, depositions generally and taking of evidence in Member States of the EU
Part 24 is derived from CPR Part 34. It contains new provisions to support Council Regulation (EC) No.1206/2001 of 8 May 2001 on cooperation between the courts of the Member States on the taking of evidence in civil or commercial matters (the ‘Taking of Evidence Regulation’). The accompanying practice direction, PD 24A – ‘Witnesses, Depositions and Taking of Evidence in the Member States of the European Union’ has the Council Regulation annexed to it (Annex B). The rule and related practice direction make extensive provisions for taking evidence by way of witness summons (r 24.2 – 24.6) deposition (r 24.7 – 24.11) and letters of request (r 24.12 – 24.14) The time for serving a witness summons is regulated by rule 24.4, the general rule being that a witness statement is binding, if served at least 7 days before the hearing. The summons itself must identify the evidence sought and its relevance and in exercising its discretion the Court must also consider whether or not the evidence can be obtained by other means (South Tyneside BC v Wickes Building Supplies Ltd (2004) EWHC 2428). As part of the process of modernisation of language ‘conduct money’ for a witness who has been summonsed is now more naturally described as ‘travelling expenses and compensation for loss of time’ and is contained in rules 24.5(3), 24.6 and PD24A para 3. It is of course open for a witness subject to such summons to apply to have it set aside pursuant to rule 24.3(4). Depositions, which were previously only provided for in connection with the Family Procedure (Adoption) Rules 2005, SI 2005/2795, are now generally available as a means of obtaining evidence (where appropriate) and are a more costeffective, less combative, quicker and easier way to avoid the difficulties frequently encountered of getting all the necessary parties, witnesses and experts to court on any given day. In essence, the procedure in relation to depositions enables a party to apply for an order that a person be examined before the hearing takes place. The conduct of the examination is regulated by rule 24.8 and the court has the power to enforce the 211
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witness to attend (rule 24.9) Rule 24.12 regulates the procedure where depositions takes place outside England and Wales. Rule 24.12(5) in particular does not appear to restrict who the court may appoint as a special examiner for the purposes of taking a deposition outside the jurisdiction. Very helpfully the practice direction itself also has a Draft Letter of Request set out within it which can be found in Annex A. In Annex C there is also a list of courts which are designated to take such evidence pursuant to the ‘Taking of Evidence Regulation’. Chapter 2 (rules 24.15 – 24.16) regulates the taking of evidence between EU Member States.
3.25
Part 25: Experts and assessors
Part 25 is derived from CPR Part 35 and contains rules relating to the appointment and duties of an expert in family proceedings. It also contains the rules relating to the appointment of assessors (rule 25.14). On the introduction to the new rule changes in January 2013 the President of the Family Division, Sir James Munby, said: “……………….. the new test gives judges more control over expert evidence in family proceedings. The rule change gives family judges the means to make robust case management decisions to make sure the expert evidence is focused and relevant. This change underlines the key role of the court in determining what expert evidence it requires to help it reach the decisions in a case. This change is a vital component of the active judicial case management that will be needed to prepare the ground for the new Single Family Court, due to come into being in April 2014.”
(See also the President of the Family Division’s judgment in Re TG (A Child) [2013] EWCA Civ 5 where he set out the new approach to expert evidence in the family courts) The rule itself applies across all family proceedings: i.e. not just to care proceedings, but to financial remedy proceedings. It will be interesting to see if district judges at the FDA stage will start adopting a more restrictive attitude to the instruction of expert evidence in financial remedy proceedings. Practice Direction 25 supporting the rules is split into six separate Practice Directions (PD 25A - F) and incorporates and supersedes the practice direction, ‘Experts in Family Proceedings relating to children’, which was issued simultaneously with the Public Law Outline and provides a more expansive and comprehensive guide to the provision of expert evidence in family cases.
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The Practice Directions themselves deal with particular aspects of the process of obtaining or using expert evidence within particular proceedings. Practice Directions 25C and 25D, for example, give additional guidance on the timing and format of applications to the court in relation to expert evidence. The stated aims of the Practice Directions are to assist the Court to:
•
Identify, narrow, and where possible, agree the issues between the parties;
•
Provide an opinion about a matter not within the expertise and skill of the
court;
•
Encourage the early identification of questions that need to be answered
by an expert;
Encourage disclosure of full and frank information between the parties,
•
the court and any expert instructed.
PD 25A deals with emergencies and instructing expert’s pre-proceedings. PD 25B deals with the duties of an expert, their report and court attendance. This is the only Practice Direction that will need to be sent with the letter of instruction. PD 25C sets out the process leading to an expert being instructed, or evidence being used, in children proceedings which also incorporates proceedings under Schedule 1 of the Children Act 1989. It includes detailed provisions as to how experts should be approached to see if they can give expert evidence and the matters which should be included in an application to instruct an expert. PD 25D deals with the appointment of experts in financial remedy and other nonchildren related proceedings. PD 25E deals with discussions between experts PD25F deals with the appointment of assessors. A useful addition within the annexes to PD 25C are suggested questions for inclusion within letters of instruction to experts. These include questions to child mental health professionals or paediatricians and adult psychiatrists and applied psychologists in Children Act proceedings. For cases involving children, in commissioning an expert’s report, regard must be had to the impact of delay on the welfare of the child. Expert testimony should only be commissioned where necessary to resolve the case and the court should only seek material from an expert witness when that information is not available, and cannot properly be made available, from the parties already involved.
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Judges therefore are required to direct the process of agreeing and instructing expert witnesses as a fundamental part of their responsibility for case management and should set out in the order giving permission for the commissioning of the expert witness the questions on which the expert witness should focus. Section 13 of the Children and Families Act 2014 imposes a statutory duty to restrict expert evidence to what “in the opinion of the Court” is “necessary” to assist the Court in resolving the proceedings, i.e. it must be relevant and necessary. In making such an assessment the court no doubt will have regard to the overriding objective set out in rule 1.1. ‘Necessary’ is given its ordinary English meaning and is a higher standard than the previous test of ‘reasonably required’. “The short answer is that ‘necessary’ means necessary … If elaboration is required … it “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.”
(Re H-L (A Child) [2013] EWCA Civ 655) In every case where an expert is proposed to be instructed the Court must consider the reasons behind the request, why this additional evidence is necessary, how it will add to the information the court already has and, in children cases, whether or not there is already an expert in the case who can provide such information e.g. the social workers or the children’s guardian? Rule 25.2(2) helpfully defines what is meant by an “expert” and a ‘single joint expert’ for the purpose of the rules. (Note evidence given by a Children’s Guardian is not categorised as expert evidence (PD 25B Para 2.1)) and neither is an officer of CAFCASS (Section 13 (8) (c) Children and Families Act 2014) What is also notable are the exclusions of certain persons from the category of expert witnesses namely, person’s providing or giving evidence who are employees of a Local Authority which is a party to the proceedings in the course of their work for the Local Authority, including those providing Suitability Reports in relation to Adoption pursuant to Section 94 (1) of the Children and Adoption Act 2002 (see also Section 13 (8) (a) (b) Children and Families Act 2014. Query – if Social Workers are no longer regarded as experts, are they now prevented from giving opinion evidence on such matters as attachment and parenting capacity? This seems unlikely, as such persons are viewed as experts in all but name and therefore it is likely that this anomaly in the rules is merely there (as with the Children’s Guardian) to ensure that the rigour in which experts are appointed and their evidence regulated under the rules do not apply to those who are fulfilling their duties as Social Worker or Children’s 214
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Guardian. Within Part 25 there is also a clear emphasis on a procedure to establish the usage of single joint experts wherever possible (PD 25C para 2.1 – 2.4 and PD 25D paras 2.1 – 2.4)) Rule 25.3 (which is echoed in para 3.1 of PD 25B) sets out that an expert’s overriding duty is to the court. Any opinion provided therefore, must be wholly independent of the party instructing the expert and deal only with questions that are within the expert’s field of skill and experience (expertise). This is particularly important given the fact that expert witnesses are now no longer immune from suit for breach of duty in relation to their participation in legal proceedings. (Jones v Kaney [2011] 2 FLR 312) The specific duties of Experts are set out in Practice Direction 25B para 4.1 which also deals with the contents of their report (9.1) and the arrangements for them to attend court where directed to do so (10.1 – 10.2). Rule 25.4 sets out the general rule in family proceedings (other than those relating to Children) that the court’s permission is required before a person can rely on expert evidence, either by calling the expert to give oral evidence, or putting in evidence a report which has already been commissioned. The reference to ‘person’ as opposed to ‘party’ provides for a blanket prohibition. The Court may give such permission if it is of the opinion that it is necessary to assist the Court to resolve the proceedings (rule 25.4(3) The provisions relating to the control of expert evidence in children proceedings is now contained in Section 13 of the Children and Families Act 2014 and provides for a prohibition from even instructing an expert, or from having a child examined or assessed for the purposes of the proceedings, without the court’s permission. Where such an unauthorised instruction has been given, or an examination or assessment has taken place, no evidence from that instruction or examination or assessment can be adduced to the court without first seeking the court’s permission. Rule 25.5 (1) makes extensive provision as what matters the Court must have regard to before allowing permission for expert evidence to be adduced in Children cases or a direction under Section 38 (6) Children Act 1989 for which the provisions of the Children and Families Act 2014 Section 13 must be cross – referenced as these have now been given statutory force. On the issue of Expert evidence Section 13(7) sets out a non-hierarchal nonexhaustive list of factors for consideration of the Court when appointing an expert:
•
the impact that giving permission would have on the welfare of the child
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the subject matter of the application;
•
the issues to which the expert evidence relates;
•
the questions the expert is required to answer
•
what other expert evidence is available;
•
whether such evidence could be given by another person;
•
the impact on the timetable, duration and conduct of the proceedings if
permission were given;
any failure to comply with rule 25.6 or any court direction relating to the
•
expert; and
•
the costs of the expert evidence.
On the issue of S 38 (6) assessments Section 13(11) sets out a non-hierarchal nonexhaustive list of factors for consideration of the Court before ordering such assessment:
•
the impact that such assessment would have on the welfare of the child;
•
the issues which the assessment or other examination would assist the
Court with;
•
the questions the assessment would enable the Court to answer
•
what other evidence is available;
•
the impact on the timetable, duration and conduct of the proceedings if
permission were given for the assessment to take place;
the costs of the examination or other assessment.
•
Of course, there will be particular emphasis on the impact of giving permission on the court’s timetable in children cases bearing in mind the 26 week timetable in public law proceedings and also the principle of ‘no delay’ (s 1(2) CA 1989) It is clear therefore that these requirements read as an important checklist that must be dealt with in any application for permission to adduce expert evidence in children cases which is no ‘rubber stamping’ exercise and is a further example of an expansion of the court’s powers in restricting expert evidence which is often regarded as one of the prime reasons for delay in children cases and which flies in the face of Section 1 (2) of the Children Act 1989. Rule 25.5 (2) provides similar, but not identical, guidance in non-children cases. The focus of the factors on costs and timetables again reflects the ever increasing trend of robust case management. In all cases, the court must consider the issues to which the expert evidence would relate, the questions which the court would require the expert to answer, the cost of the expert evidence, the impact if permission were granted on the timetable, duration and conduct of the proceedings, and whether
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the application is late (i.e. in breach of rule 25.6 or any other direction of the court about expert evidence). Rule 25.6 provides, unless the Court directs otherwise, that such application for permission should be sought as soon as possible in order to avoid unnecessary delay and, of course, in furtherance of the overriding objective. Generally this should be done no later than at the first hearing which is specifically set out in the rules as follows:
•
In Part 4 and in so far as practicable in other Public Law proceedings
the Case Management Hearing
•
In Private Law Proceedings the FHDRA
•
In Adoption and Placement proceedings the First Directions Hearing
•
In defended matrimonial or Civil Partnership proceedings the Case
Management Hearing
•
In financial remedy proceedings the FDA.
It is clear that applying late will add an additional hurdle as the wording, that the court must “direct otherwise”, means that the Court must specifically allow the application to be made later than the time prescribed by the rules. By Rule 25.7 such permission should be sought using the Part 18 procedure (although rule 18.4 does allow the court to dispense with the requirement for an application notice) and should deal with the field of expertise, the identity of the expert concerned, the issues which need to be addressed (and in children proceedings the questions which are required to be answered (note this does not need to be in the format of a fully-fledged detailed Letter of instruction – bullet points should suffice)) and whether such matters can be dealt with by a Single Joint Expert. In a Judicial circular issued by the President of the Family Division dated 17th July 2013 it was considered vital that in every case for which permission to instruct an expert was sought that there should be produced to the court written evidence (preferably by way of a detailed CV) of:
•
The Experts qualifications,
•
Area of Expertise and
•
Level of experience
The application should also be accompanied by a draft of the proposed order which should set out the matters specified in PD’s 25C and 25D. The court when granting such permission will only do so in relation to the named
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expert or field as identified in the application and will provide the date by which such report is to be filed and served (and in children cases the questions which the expert is required to answer – taken no doubt and amended as required from the suggested questions set out in the initial application) (Rule 25.8(2)) The Court can also limit the extent of the expert’s fees and expenses. When the Court grants permission it will then go on to specify a date for the filing of the experts report and in children’s cases the questions which the expert is required to address and the date by which they are to receive the letter of instruction. Once obtained the order should also be served upon the expert instructed. Rule 25.9 provides that in the first instance expert evidence must be given by way of a written report, oral evidence only being given at a hearing where it is necessary to do so in the interests of justice. This, of course, accords with the overriding objective and the issue of proportionality and the saving of costs. As mentioned, PD25B Paras 3.1 – 4.1 sets out the duties of experts. The content of the expert’s report itself is set out in detail in PD 25B, para.9. 1 and should be verified by a statement of truth in accordance with the wording set out in para.9. 1(j) Expert reports must be succinct, focused and analytical and be evidence based. PD25B, paragraph 4.1(e), requires the expert to confine themselves to “matters material to the issues in the case”. PD25B, paragraph 9.1, sets out the required content of the expert’s report. PD25B Paragraph 9.1(b) provides that the expert must summarise the facts and instructions which are material to the conclusions and opinions expressed in the report, but only as far as is necessary to explain them. Paragraph 9.1(h) provides that the report must contain a summary of the expert’s conclusions and opinions. The emphasis being on ‘summary’. It is suggested that a copy of these parts of the practice direction should be sent to those experts whom you instruct as a matter of course with your letter of instruction. The letter of instruction in the first instance must be by way of a jointly agreed letter; in default of such agreement it is possible for each party to provide their own instructions to the expert but such instructions must also be disclosed to the other party (rule 25.12(1), (3)). Where the parties are unable to agree, the Court itself can settle the letter of instruction for which the procedure is set out in PD 25C para 6.1 and PD 26C para
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6.1, depending on whether the proceedings are children or non-children related proceedings. Rule 25.10 provides that written questions may be put to an expert upon receipt of their report. Such questions may only be put once and must be put within 10 days of service of the expert’s report (which in itself is a significant reduction from that under the CPR which is 28 days). The purpose of such questioning must be for clarification only, rather than by way of supplemental instructions and must be proportionate. A copy of the proposed questions must also be sent to the other parties at the same time as they are sent to the expert. The answers to such questions must be given within the timetable given by the Court. Where there are errors or ambiguities in an experts report the parties are duty bound to address these with the expert concerned: “Where a report by a single joint expert contains manifest ambiguity or error, parties will usually be expected to………ask one or more suitable questions. Otherwise there will be a risk that the report will be of little value to the court and/or give rise to argument and expense…..” (Woolley v Essex CC (2006) EWCA 753) The rules also allow the court to specify a timescale in which the responses are to be dealt with (see also FPR 25.10 (3) (a)) Rule 25.10 (4) sets out the sanctions available should an expert fail to deal with questions raised by a party and include a party other than the one who instructed them. Such sanctions can include the non-recoverability of their fees and/or the inability of the instructing party to rely on the experts report. Presumably, before imposing such a sanction, an ‘unless order’ should be the first port of call. Experts themselves can seek directions from the Court for the purpose of assisting them with carrying out their functions (FPR r 25.17) including, presumably, dealing with any matters arising out of any questions raised of them pursuant to Rule 25.10 in light of the potential sanctions discussed above. Rule 25.11 permits the court to limit expert evidence to that of a single joint expert wherever possible (which will be the normal practice as reiterated in Para 2.1 of PD 25C). Rule 25.12 deals with the instructions to a single joint expert which must normally be by way of a jointly agreed letter and, unless the court directs otherwise, for the parties to be jointly and severally responsible for their fees (see JG (A Child) v LSC; QBD, Administrative Court; Ryder J; 9/4/13)
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Rule 25.14 states that an expert’s report must comply with PD 25B. The report must also contain a statement that the expert understands and has complied with their duty to the court. Rule 25.16 sets out the procedure for discussions and joint statements where evidence from more than one expert is permitted in order to limit, wherever possible, the need for the experts to attend court to give oral evidence and thus save expense by attempting to identify and reach an agreed opinion on the issues. Such joint statements must deal with the issues upon which they agree and those on which they disagree together with a summary of their reasons for agreeing or disagreeing and what, if any, action needs to be taken to resolve any outstanding disagreement or question. The practical arrangements for such discussions and meetings, including their purpose and content, are set out in PD 25E. Adherence to this will be crucial but note the option of utilising telephone conferences or video links to facilitate this. Note, in particular, that questions for the experts to address which repeat questions in the initial letter of instruction or which seek to rehearse cross-examination are to be discouraged. (The word used in the practice direction is the more forceful ‘rejected’.) The practice direction itself also imposes stringent timescales:
•
Arrangements to be made for the experts’ meeting (15 business days post
experts’ report).
•
Formulation of an agenda (which may consist of a list of questions to be
addressed) (five business days prior to the meeting).
•
Agenda and/or list of questions to be sent to each expert (two business
days before the meeting). (Note that only in exceptional circumstances
should questions be added to the agenda less than two days before the
meeting and under no circumstances should any question received
on the day or during the meeting be accepted. Although this does not
preclude questions arising during the meeting itself for the purposes of
clarification, it is difficult to see how this is going to be adequately policed
if the parties or experts themselves do not raise any objections! – query a
proactive and robust role for the Children’s Solicitor as Chair)
•
The filing and service of a signed Statement of Agreement and
Disagreement (five business days post meeting).
•
Written notice of a party’s refusal to be bound by an agreement
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an Issues Resolutions Hearing (IRH) is to be held, five business days before the IRH). (A potential trap for the unwary)
In A Local Authority v NB (2013) EWHC 4100 it was mooted that where the picture remains unclear after an experts meeting, it would be useful to hold an IRH to establish the true state of medical agreement and disagreement. This would require only the key medical witnesses and elucidation would be appropriately led by the judge rather than by cross-examination on behalf of each party. This would be more efficacious than commissioning further reports. As to the appointment of a second expert in cases where you don’t like the report of the one who has initially been appointed Re McC (Care Proceedings: Fresh Evidence of Foreign Expert) [2012] EWCA Civ 165 makes it abundantly clear that there is an obligation to seek permission from the court before instructing a fresh expert. In instructing a second expert the key issue will be: is the evidence required relevant to the core issues? Or, in the alternative, will there be an understandable sense of grievance for the applicant, judged objectively, were permission to be refused; or would there be a more understandable sense of grievance for the respondent if permission were to be granted? (Daniels v. Walker [2000] EWCA Civ 508, [2000] 1 WLR 1382 and Cosgrove and Anor v. Pattison and Anor (unreported, 27 November 2000).) The critical question will also be whether the report is necessary to enable the judge to deal justly with the case and what the additional expert would add to it. There has to be a good reason to justify further reports. (R v A Local Authority & ABC (By her Children’s Guardian) [2011] EWCA Civ 1451) In deciding whether to grant permission to adduce additional expert evidence, the court will exercise its discretion, taking into account the following factors:
•
the nature of the issue or issues being addressed by the expert;
•
the number of issues between the parties;
•
the reason the new expert is wanted;
•
the amount at stake and, if it is not purely money, the nature of the issues
at stake and their importance;
the effect of permitting one party to call further expert evidence on the
•
conduct of the proceedings;
•
the delay, if any, in making the application;
•
any delay that the instructing and calling of a new expert will cause;
•
any other special features of the case; and
•
the overall justice to the parties in the context of the proceedings.
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A party might, for example, be permitted to adduce evidence from a further expert in circumstances where their original expert has modified their opinion. However, a change of opinion does not, in itself, establish that further evidence is ‘necessary’ for the purposes of rule 25.1, since the change of opinion is not binding on the instructing party. The overriding duty of an expert is to the court. In the context of trial management it is permissible for an expert to modify their opinion: it saves both time and costs and if an expert believes that they cannot support a party’s case they should say so sooner rather than later (Guntrip v Cheney Coaches Ltd (2012)) However, further expert evidence may be permitted if it is apparent that the instructed expert has stepped outside their expertise or brief, or has displayed incompetence. For an example of this see Re L (Psychologist – Duty to the Court) (2011) EWHC 829 where no weight was attached to the report of a psychologist where they had trespassed beyond their remit into medical matters. Rule 25.10, however, does not preclude a party from putting questions to their own expert. This, in any event, should be done as a prerequisite to an application for permission to rely on evidence from a second expert, since the answers to questions relating to a change of opinion might be important in determining whether the change raises questions as to whether the expert has stepped outside their expertise or brief or whether the competence of the expert is subject to challenge. Rule 25.18 provides that, unless directed otherwise, a copy of any order or other document affecting the expert must be served on them within 2 days of receipt by the party instructing them, or taking the lead in the case of a single joint expert. The purpose of this is to ensure that the expert instructed is kept fully up to date both in relation to the report and/or questions they are required to deal with, giving evidence before the Court, if required, as to the contents of their report in light of that further evidence or documentation, or in revisiting, if needs be, any report prepared in light of the same. As feedback is no doubt important to any expert instructed, Rule 25.19 provides that within 10 days of the final hearing the expert should be informed as to the court outcome and the use made of their report for the purposes of feedback and, unless directed otherwise, must also be provided with a copy of the final order and a transcript or written record of the court’s decision and reasons (see Re X, Y and Z (Expert Witness) (2011) EWHC 1157).
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Clearly it will therefore be important at the conclusion of all hearings at which expert evidence has been commissioned by one or both of the parties that active consideration is given as to whether or not such directions should be sought as this provides the default rule and can be quite costly and time consuming particularly when it comes to having to request transcripts which are unlikely to be ordered at public expense. Focusing on the accompanying practice directions, their clear aim is to encourage the early determination of the question as to whether or not expert evidence is required and, if it is, the questions and issues that such expertise needs to address. This will be determined by whether or not the court requires an opinion on a matter which lies outside its area of skill and expertise in order to determine the matter before it. PD 25 C Para 5.1 makes specific reference to the appointment of an expert to deal with issues as to capacity. Even before the commencement of proceedings, and in cases of emergency, it is clear that the court will expect the guidance set out in the practice directions to be followed wherever possible (PD 25A, paras.2.1, 3.1 and 3.2). In Children proceedings, any argument as to a potential breach of confidentiality by disclosing information for the purposes of seeking a response to preliminary enquiries in relation to a ‘permission hearing’ is dealt with by para 3.4 of PD 25C. PD 25C specifically applies to children proceedings and deals with the instruction of single joint experts (paras 2.1 -2.7) preparation for the ‘permission hearing’ (paras 3.1 – 3.11) and the matters for inclusion in the letter of instruction (para 4.1) The process of choice of a Single Joint Expert is set out specifically in paras 2.1 and 2.2. suffice to say that there is a clear bias for there to be the instruction of a single joint expert “wherever possible”. Paragraphs 3.2 – 3.5 of PD 25C sets out the preliminary enquiries that must be made and responded to by a proposed expert to be instructed in proceedings relating to children “in good time for the information requested to be available” prior to any hearing at which the permission to instruct such an expert is likely to be addressed. In Care proceedings this should be done prior to the Case Management Hearing (or the Advocates meeting prior to the same) and in Private Law proceedings prior to the First Hearing Dispute Resolution Appointment. The model responses are dealt with within in Paragraph 8.1 of PD 25B. These requirements are essential and familiarity will be crucial as the court is likely to be policing this very closely. (It is suggested that template letters should be set up and that practitioners should ensure 223
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an instructed expert can and does respond in good time prior to any hearing.) PD 25 C para 3.10 sets out the detailed requirements of what the application for permission to instruct an expert within Children proceedings must contain. This is further reinforced by the fact that any party who proposes to seek permission of the court to instruct an expert must attach to their application a draft order detailing the various matters and directions set out in the practice direction 25 C at para.3.11. PD25C, paragraph 3.11(b), stipulates, the questions must not contain “unnecessary or irrelevant detail”, they must be “kept to a manageable number” and they must be “clear, focused and direct.” Once permission is granted the instructing party must file and serve the letter of instruction in accordance with the timetable set by the Court and thereafter keep the expert fully up to date by promptly providing a copy of any new document filed. The details contained within the letter of instruction is contained within PD25C para 4.1 PD 25C also sets out the procedure to be followed where the court is required to settle the letter of instruction itself in the event of a lack of consensus (para.6.1). PD 25 D provides similar but not identical information in relation to Financial Remedy and other non – Children related proceedings and again deals with the instruction of single joint experts (paras 2.1 -2.7) preparation for the ‘permission hearing’ (paras 3.1 – 3.12) and the drafting of the letter of instruction (para 4.1) Note in particular the similar, but not identical, preliminary enquiries set out in para 3.3, the contents of the application in para 3.11 and draft order para 3.12. The filing and service of the letter of instruction must be undertaken within 5 business days of the order granting permission and be in accordance with para 4.2. Where an expert or experts are required to attend court, the provisions of PD 25B, paras.10.1 and 10.2 apply in so far as the practical arrangements are concerned. Note in particular, that all parties will need to focus their minds on the issues which the experts are asked to address and, in cases where all the experts agree but a party nevertheless wishes to challenge their evidence, then that party must be prepared to set out their reasons for not accepting the agreed opinion. Anyone, therefore, seeking to adduce expert evidence will thus need to have done their homework – a good knowledge of the rules and practice directions will be essential. If you turn up at court without an application asking for an unidentified
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expert to be instructed with no clear idea of the timescale and no list of questions for the expert to answer, do not expect to get permission!
3.26
Part 26: change of solicitor
Part 26 is derived from CPR Part 42 and contains provisions relating to a change of solicitor including provision for a change of solicitor for a children’s guardian, thus removing the previous reliance on RSC O.67 and CCR O.50. Rule 26.2 provides for the requirement as to filing and service of a notice of change, whether it be in relation to a change of address for service generally, or in relation to the appointment of a new solicitor in place of one previously instructed, or the appointment of one by a party who was previously acting in person, or indeed a person who now wishes to act in person. In the three situations referred to in rule 26.2(1) it is mandatory for the party, or their solicitors, to file and serve a notice of change. The notice itself must state the party’s new address for service and when filed with the court must state the fact that it has been served on the other parties and, if appropriate, the former solicitors. In so far as the revocation or discharge of the public funding certificate is concerned, this is dealt with by rule 26.2(6). Notice of revocation or discharge must be served on all the other parties and the court. No further action is required to enable the solicitor to come off the court record as acting. Rule 26.3 provides for the procedure to be followed where a solicitor wishes to apply to the court to cease acting and come off the court record as so acting. Such application must be on notice and be supported by evidence as to the reasons. The application should be in accordance with the Part 18 procedure. Any order made must be served on every party and only takes effect once served. Rule 26.4 provides for a similar procedure where another party may apply to have a solicitor removed from the court record as acting. It must be stressed, and this is highlighted by the accompanying PD 26A, that in
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circumstances where a solicitor has previously given an address for service, or there is a current Legal Aid Agency (LAA) funding certificate, until the requirements of FPR 2010, Part 26 have been complied with, a solicitor will still remain on the court record as acting. The requisite form of notice is set out in PD 5A.
3.27
Part 27: Hearings and directions appointments
This important and innovative addition to the rules aims to allow the lay justice or justices to announce a decision and give the parties a short explanation of that decision (rule 27.2). It also allows for the supply of a copy of the order and reasons for the court’s decision by close of business on the day when the decision is announced, or, if that is not practicable, no later than 72 hours from the announcement of the decision itself. Parties are expected to attend all hearings of which they have notice unless their attendance is excused (rule 27.3) because, for instance, the hearing is to be conducted by way of a telephone hearing. Hearings may properly proceed in the absence of a party, provided that it is proved that the non-attending respondent received ‘reasonable notice’ of the date of hearing (note, no reference to ‘service’) or the court is satisfied that the circumstances justify proceeding without them. In the case of a child party, the court may proceed in their absence where the child is represented by a guardian, or a solicitor who has the opportunity to make representations, including representations from the child themselves if they are of sufficient understanding (note, age is not mentioned as a relevant factor when assessing whether or not a child has ‘sufficient understanding’) (rule 27.4). In the case of the non-appearance of an applicant, the court may refuse the application or nevertheless proceed. These provisions, however, 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 provisions of s 11 of CA 1989 (separate provisions are set out for such hearings in FPR 2010, Part 12). Of particular interest is rule 27.5 which provides for a party’s right to set aside a judgment or order following the party’s failure to attend. In essence, where a party does not attend a hearing or directions appointment and an order is made against them, the party who has failed to attend may apply for the order to be set aside. 226
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The onus is thus on the party who has failed to attend to demonstrate why it is that the judgment or order should be set aside. Such application must, of course, be supported by evidence and, in particular, be mindful of the fact that the court may only grant such an application if the following conditions have been met:
•
The party acted promptly once they became aware of the order.
•
The party had a good reason for not attending.
•
The party has a reasonable prospect of success at the hearing or
directions appointment. In order to succeed in an application to set aside a judgment these three preconditions have to be satisfied. If each of these three hurdles is surmounted the judgment will be set aside, save in a very exceptional case. The court does not have a broad discretion whether to grant such an application: all three conditions have to be satisfied to enable it to set aside an order. What constitutes promptness and good reason for not attending is fact-sensitive and the court will not, in most cases, be very rigorous when considering an applicant’s conduct. Like all other rules however FPR r.27.5 is subject to the overriding objective Case law relating to the similar provisions contained within CPR rule 39.3(5) will no doubt prove of use. For example what is ‘promptly’? The FPR imposes duties on the parties to litigation which includes the duty to aid the court in achieving the overriding objective by ensuring a case is dealt with expeditiously. In the case of Regency (2000) a delay of 30 days was held to be too long and a delay of 59 days was ‘at the outer limit of what could possibly be acceptable’ (Hart (2006)) However, promptness of the application is just one of the factors the Court must consider and therefore not solely determinative of the issue, but the longer the delay and the lack of adequate reasons for it the more likely that weight will be given to that factor (Sahidur Rahman v Rahman & Bose (1999)) Turning to ‘good reason’ in Brazil v. Brazil [2002] EWCA Civ 1135, Mummery LJ said this: “There has been some debate before us, as there was before the judge, about what is or is not capable of being a ‘good reason’. In my opinion the search for a definition or description of ‘good reason’ or for a set of criteria differentiating between good
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and bad reasons is unnecessary. I agree with Hart J that, although the court must be satisfied that the reason is an honest or genuine one, that by itself is not sufficient to make a reason for non-attendance a ‘good reason’. The court has to examine all the evidence relevant to the defendant’s non-attendance; ascertain from the evidence what, as a matter of fact, was the true ‘reason’ for non attendance; and, looking at the matter in the round, ask whether that reason is sufficient to entitle the applicant to invoke the discretion of the court to set aside the order. An over analytical approach to the issue is not appropriate, bearing in mind the duty of the court, when interpreting the rules and exercising any power given to it by the rules, to give effect to the overriding objective of enabling it to deal with cases justly. The perfectly ordinary English phrase ‘good reason’ . . . is a sufficiently clear expression of the standard of acceptability to be applied to enable a court to determine whether or not there is a good reason for non-attendance. In Estate Acquisition and Development Ltd v. Wiltshire [2006] EWCA Civ 533 the Court of Appeal followed what Mummery LJ had said in Brazil v. Brazil. Dyson LJ added this: Moreover, [the rule] must be interpreted so as to comply with article 6 of the European Convention on Human Rights (right to a fair hearing). I refer to the judgment of Brooke LJ in Goode v. Martin [2001] EWCA Civ 1899, [2002] 1 WLR 1828 para 35. In my view, it is necessary to have both article 6 and the overriding objective in mind when interpreting and applying the phrase ‘good reason’. It should not be overlooked that the power to set aside an order made in the absence of the applicant may only be exercised where all three of the conditions . . . are satisfied. In addition to the need to show a good reason for not attending, the applicant must have acted promptly and that he has a reasonable prospect of success. If the phrase ‘good reason’ is interpreted too strictly against an applicant, there is a danger that the interpretation will not give effect to the overriding objective and not comply with article 6.
Such comments equally apply when dealing with applications for relief from sanctions under r 4.5 (see earlier) however there are important differences between the two rules. For example under r.4.5 a court can, when considering whether to grant relief from any sanction, consider all the circumstances including whether the delay was caused by the legal representative. It is doubtful whether consideration of whether the delay was caused by a legal representative should be imported into r.27.5 as it would be wrong for a party to be able to shield behind them. In the civil case of Bank of Scotland v Pereira (2011) EWCA Civ 241 it was mooted that:“If the case is disposed of in the absence of a party, and the party (i) has not attended for good reasons, (ii) has an arguable case on the merits, and (iii) has applied to set aside promptly, it would require very unusual circumstances indeed before the court would not set aside the order…………….
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The strictness of this trio of hurdles is plain, but the rigour of the rule is modified by three factors. First, what constitutes promptness and what constitutes a good reason for not attending is, in each case, very fact-sensitive, and the court should, at least in many cases, not be very rigorous when considering the applicant’s conduct; similarly, the court should not pre-judge the applicant’s case, particularly where there is an issue of fact, when considering the third hurdle. Secondly, like all other rules, CPR 39.3 is subject to the overriding objective, and must be applied in that light. Thirdly, the fact that an application under CPR 39.3 to set aside an order fails does not prevent the applicant seeking permission to appeal the order. It is not very convenient, but an applicant may be well advised to issue both a CPR 39.3 application and an application for permission to appeal at the same time, or to get agreement from the other party for an extension of time for the application for permission to appeal.” “if the defendant concludes that she cannot establish that she had a good reason for not attending the trial and/or that she made her CPR 39.3 application promptly, it would obviously be silly for her to make a CPR 39.3 application. In such a case, she can nonetheless seek to appeal against the trial judge’s decision in the same way as any other defendant. … CPR 39.3 is, in that sense, merely an additional potential course given to a defendant who, with good reason, was unable to attend the trial.”
However, Williams v Hinton (2011) EWCA Civ 1123 held that where a party is dissatisfied with a judgement at a hearing at which they failed to attend and their main principle of appeal is focussed on the judge proceeding in their absence as opposed to adjourning the matter, then the proper route to challenge the judgement is by way of an application to set it aside under CPR 39.3(3) rather than appeal. In the family jurisdiction it seems that the correct way to proceed is in the latter respect wherein Re P (A Child) (2013) held that there was no need for a mother to appeal against a prohibited steps order prohibiting her from taking her child out of the jurisdiction where she had failed to attend the original hearing as she could apply to set aside the order under the r.27.5 instead. However, rule 27.5 only contemplates a hearing or directions appointment in the absence of a party who has been served under the rules, or in respect of whom service has been dispensed with, and does not apply to judgments irregularly obtained in the sense of being obtained without service of the application in accordance with the rules (Akram v. Adam [2004] EWCA Civ 1601). Thus, rule 27.5 only applies if the respondent has had notice of the hearing; if not then the court’s discretion to set aside a judgment arises instead under FPR 2010, rules 4.7(b) and 4.1(3)(o). 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 the magistrates’ court. Whilst it is easy to imagine why it may be unwise to leave the application of such legal tests
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to lay magistrates, it seems that in cases of peremptory dismissal, or refusal of such an application by magistrates because a person has failed to attend a hearing, the only route of challenge may now be to appeal the order itself (See Bank of Scotland v Pereira (2011) EWCA Civ 241 above) The original PD 27A (see also rule 27.6) incorporated the subsisting President’s Direction of 27 July 2006 relating to court bundles and has now been superseded by a Universal Practice Direction In his 4th View from the President’s Chambers: An update, Sir James Munby P, said this: ‘We shall need in future to distinguish more clearly between documents that are filed, documents that are served but not filed, documents that are listed but not served or filed, and documents that are included in the bundle...Not every document that has been served or filed needs to be included in the bundle. Many do not. Surely, for the future, bundles should contain only those documents that the court needs to read or which will actually be referred to during the hearing. Everything else should be omitted. I suspect that a single lever-arch file will suffice for the majority of care cases.’ The Universal Practice Direction gives details about how bundles should be presented, by whom and where and when they should be lodged. The Practice Direction applies to all hearings of whatever duration proceeding either in the High Court or the Family Court save in relation to urgent hearings and only to the extent that it is not possible to comply with it (para 2.1 and 2.4) and applies whether the bundle is being lodged for the first time or being re-lodged. The main features of the Practice Direction are:
•
the responsibility for preparation of the bundle lies with the applicant (or
the respondent if the applicant is a litigant in person)(para 3.1);
if possible, the content of the bundle should be agreed between the
•
parties, with the caveat that bundles should contain only those
documents that the Court needs to read or which will actually be referred
to during the hearing (paras 3.2 and 4.1)
the bundle should consist of one A4 sized ring binder or lever arch file
•
limited to no more than 350 sheets of A4 paper printed on one side
only in 12 point font with 1 ½ or double spacing and paginated
individually and consecutively and indexed with the file clearly marked on
the front and spine to identify the court case (para 5);
the documents should be in chronological order and divided into sections
•
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as set out in the Practice Direction. All statements and reports included in
the bundle must be copies of the originals which have been signed and
dated (para 4.2);
preliminary documents (as set out in the Practice Direction (para 4.3))
•
should be inserted at the start of the bundle which should also include the
time estimate provisions as provided for in paragraph 10.1.
Copies of all authorities relied upon must be contained in a separate
•
composite bundle agreed between the advocates.
The party preparing the bundle shall provide a paginated index to all the
•
other parties not less than 4 working days before the hearing (para 6.1)
If counsel is to be instructed, the fully paginated bundle should be
•
delivered to them not less than 3 working days before the hearing
(para 6.2)
•
Unless directed otherwise the bundle should be lodged with the court
no less than 2 working days before the hearing (in quadruplicate in the
case of lay justices) and the package in which it is contained displaying
clearly the date and place of the hearing as well as on the bundle itself
(paras 6.3, 7.3 and 7.5)
One spare bundle should also be brought to Court on the day of the
•
hearing for the purpose of any witness(es) who may be giving oral
evidence (para 7.4)
The bundle should be arranged as follows:
(a) preliminary documents and any other case management documents
required by any other practice direction;
(b) applications and orders;
(c) statements and affidavits (which must be dated in the top right corner of
the front page);
(d) care plans (where appropriate);
(e) experts’ reports and other reports (including those of a guardian,
children’s guardian or litigation friend); and
other documents, divided into further sections as may be appropriate.
(f)
The preliminary documents must be as short and succinct as possible and state on the front page immediately below the heading the date when it was prepared and the date of the Hearing for which it was prepared. It should be noted that where proceedings relating to a child are being heard by Lay justices, the summary of the background application be prepared in anonymised
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form omitting the names and identifying information of any person referred to other than the parties’ legal representatives and stating the number of pages contained in the bundle. Identifying information however can be contained in all other preliminary documents. The background Summary, Statement of Issues, Chronology, reading list and any Skeleton Arguments should be cross-referenced to the relevant pages of the bundle. Note that the following documents should not be included in the bundle unless specifically directed by the Court:
•
Correspondence (including letters of instructions to experts);
•
Medical records;
•
Bank and credit card statements and other financial records;
•
Notes of contact visits;
•
Foster Carer logs;
•
Social Services files;
•
Police Disclosure
Accordingly if any of the above documents are likely to be relied upon then an application will need to be made to the Court prior to the hearing as to their inclusion and the justification for doing so. Re-lodged bundles for the purposes of subsequent Hearings should be updated and all superseded documents removed (Paragraph 4.8) There is an important provision set out in Paragraph 7.6 of Practice Direction 27A which says that in the case of Hearings proceeding at the Royal Courts of Justice or any other place where the designated Family Judge directs that receipt or other proof of posting or despatch of the bundle must be brought to Court on the day of the Hearing and produced to the Court, if requested, as proof of compliance with this Practice Direction. If this cannot be produced then the Court may treat the bundle as having not been lodged for the purposes of a finding of non-compliance for which sanctions can be imposed. It is anticipated that this will be enforced rigorously in the new climate of compliance. Note the provisions of Paragraph 9.1 that the party preparing the bundle is responsible for retrieving it from the Court, failure to do so within five working days will mean that it will be destroyed without further notification. Paragraph 10.1 makes important provision with regard to time estimates which must 232
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be inserted at the front of the bundle and agreed by all the parties. Time estimates should specify separately:
(i)
the time estimate required for judicial pre-reading
(ii)
the time required for hearing all evidence and submissions
(iii) time estimated to be required for preparing and delivering judgment.
Such time estimates will be prepared on the basis that before giving evidence all witnesses have read their Statements and therefore it will be important that each party ensure that this has been undertaken in order for the case to proceed within the allotted time given to the Court. Time estimates should also take an appropriate account of any additional time likely to be incurred for the use of interpreters or intermediaries. Any change in the time estimate must be notified immediately by telephone to the Court and thereafter confirmed in writing. Note also the provisions with regard to taking cases out of the list as set out in paragraph 11.1. In contrast to paragraph 10.1 this requires not only telephonic notification but electronic confirmation to be followed up by jointly agreed letter signed by all the parties and setting out:
•
A short background summary of the case;
•
Where a party does not consent details of the steps take to obtain their
consent and, where known, an explanation of why that consent has not
been forthcoming;
•
A draft of the order being sought; and
•
Sufficient information to enable the court to decide:
o
Whether to take the case out of the list and
o
Whether to make the proposed order.
Particular attention should also be given to the various threats made in cases of noncompliance set out in paragraph 12.1 and previously echoed in Re X & Y (Bundles) [2008] 2 FLR 2053 and reiterated in B v B [2012] EWHC 1924:
•
An order for costs (including wasted costs) against the defaulting party
and/or defaulting lawyer
The defaulting case may be put back to the end of the day’s list or
•
adjourned altogether
•
In particularly egregious cases, the defaulting practitioners may be publicly named in open court judgments
Rule 27.8 ensures that documents in the custody of the court should not leave its 233
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custody save by court order or formal request. Rules 27.10 and 27.11 deal specifically with media access in private proceedings and generally provide that all hearings covered by the rules are to be held in private unless provided for otherwise by a rule, enactment or a direction. However, just because the hearing is in private, it does not automatically follow that reporting restrictions will apply. For the purpose of the exercise of such discretion, hearings conducted for the purposes of judicially assisted conciliation or negotiation (e.g. FDRs, FHDRAs and IRHs) and proceedings for adoption and placement proceedings are excluded. The court can also exclude the media of its own initiative or if representations are made by:
(a) a party to the proceedings;
(b) any witness in the proceedings;
(c) where appointed, any children’s guardian;
(d) where appointed, an officer of the service or Welsh family proceedings
(e) the child, if of sufficient age and understanding.
officer, on behalf of the child the subject of the proceedings;
Applications to exclude the media should normally be dealt with by way of oral submissions and advance notice should be given if it is known that the media are likely to attend any given hearing. As for the exercise of such discretion in excluding duly accredited representatives of news agencies from private proceedings see rule 27.11(3). The general principle and starting point is that accredited media representatives should be granted access to the courts, thus placing the burden firmly on the person seeking their exclusion. The person seeking to exclude the media under r 27.11(3) (a) must satisfy the court that it is ‘necessary’ to do so. That word is not synonymous with ‘indispensable’, nor does it have the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’ (Re Child X (Residence and Contact: Right of Media Attendance) (2009) EWHC 1728) Unaccredited representatives of the media may be permitted to attend at the courts discretion under rule 27.11(2) (g). In essence, exclusion is based upon the interests of any child, the safety or protection of the parties or any witness, the orderly conduct of the proceedings or the
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impediment or prejudice of the administration of justice. The rule is backed up by two practice directions: PD 27B deals with the attendance of the media in family proceedings in the High Court and county court; PD 27C deals with family proceedings in the family proceedings court. Note in particular paras.5.2, 5.3 and 5.4 of both practice directions in respect of the exercise of the court’s discretion in excluding the media. Before exercising such power the court should give a party and any representatives of the media in attendance the opportunity to make representations. Reporting restrictions under the Administration of Justice Act 1960, Section 39 of the Children and Young Persons Act 1933 and the Children Act s 97(2) however will still continue to apply as does Section 11 of the Contempt of Court Act 1981 in so far as any breach is concerned. Finally, the rule itself does not entitle media representatives to receive or peruse court documents referred to in the course of evidence, submissions or judgement without permission of the court. However, different considerations will apply to appeals to the Court of Appeal as these are not governed by the FPR 2010 but by CPR 1998 rule 52 instead. The above however must now be read in light of recent and forthcoming developments more notably the Practice Guidance: Transparency in the Family Courts: Publication of Judgments on publication of judgments for judges in the Family Courts. The aim of the Guidance, which came into effect 3 February 2014, is to improve public understanding of the court process and confidence in the court system. The Guidance will have the effect of increasing the number of judgments available for publication. It distinguishes between two classes of judgment:
(1)
those that the judge must ordinarily allow to be published; and
(2)
those that may be published.
The President will be also be issuing shortly, for discussion and comment, further draft Practice Guidance dealing with the next step, namely the disclosure to the media of certain categories of document, subject to appropriate restrictions and safeguards.
3.28
Part 28: Costs 235
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This Part is derived from CPR Parts 44, (excluding 44.2 “costs following the event”), 46, 47 and 48 and largely replicates and consolidates the previous costs rules in FPR 1991 (r 10.27) together with the ancillary relief costs rules introduced in 2006 but with two additions:
1.
All rules are applied having regard to the over-riding objective in Part 1.1;
and
2.
Rule 28.1 contains an express provision that “the court may at any time make such order as to costs as it thinks just.”
Note the definition of ‘financial remedy proceedings’ excludes orders for maintenance pending suit, maintenance pending outcome of proceedings, interim periodical payments orders or indeed any other form of interim order including payments in respect of legal services. Section 15 and Schedule 1 CA 1989 claims are also not included in this definition and neither are applications pursuant to DPMCA 1978, Part 1 or their CPA 2004 equivalents. Query: what is the position in relation to an avoidance of disposition order pursuant to Section 37 MCA 1973? An application to prevent a disposition under section 37 (2) (a) is ‘an order preventing a disposition’. An application to set aside a disposition under section 37(2) (b) (c) is an ‘avoidance of disposition order’: FPR r 9.3(1). The rules are silent in relation to s 37(2) (a) applications so it can be mooted that they must be regarded as ‘any other form of interim order’ (Rule 28.3(4) (b) (i); Rule 9.7(1) (e)) for which the no order for costs rules is disapplied. By rule 2.3(1) however, an avoidance of disposition order is a ‘financial order’ but is it an interim order? Although an application to set aside a disposition under s 37 (2) (b) can be heard before the final hearing (s 37(2) (c) of course by definition takes place following such a hearing) there is nothing ‘interim’ about the decision – either the disposition is set aside or it isn’t. It is mooted therefore that the ‘no order as to costs rules’ should apply subject of course to the issue of litigation conduct. Also omitted are applications for injunction, applications to set aside financial remedy orders (Judge v Judge (2009) 1 FLR 1287) intervener proceedings (Baker v 236
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Rowe (2010) 1 FLR 761) and enforcement pursuant to FPR Part 33. Accordingly, ‘Calderbank letters’ are still alive and well in these particular circumstances, and the corresponding costs rules fall to be determined pursuant to CPR 44 namely costs following the event. Having said that, regard must be had to the sentiments set out in Gojkovic v Gojkovic (No 2) (1991) 2 FLR 233: “………………in the family division there still remains the necessity for some starting point. That starting point, in my judgement, is that costs prima facie follow the event………but may be displaced much more easily than, and in circumstances which would not apply, in other divisions of the High Court.”
However, in KS v ND (Schedule 1: Appeal: Costs) [2013] EWHC 464 it was held that it was doubtful whether the principle of costs prima facie following the event should apply in Children Act 1989, Schedule 1 proceedings and that the court instead should start with a “clean sheet”. In Solomon v Solomon [2013] EWCA Civ 1095 however Ryder LJ said this: “The starting-point for what are described as “clean sheet” cases is that costs follow the event.” FPR 2010, rule 28.1 simply provides that the court may, at any time, make such order as to costs as it thinks just and thus the court has a broad discretion subject to the provisions of CPR 44.2(4) & (5):
“(4)
in deciding what order (if any) to make about costs, the court must have regard to all the
circumstances, including –
(a)
the conduct of all the parties;
(b)
whether a party has succeeded on part of his case, even if he has not been wholly
successful; and
(c)
any payment into court or admissible offer to settle made by a party which is drawn
to the court’s attention, and which is not an offer to which costs consequences
under Part 36 apply.
(5)
The conduct of the parties includes – (a)
conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any
relevant pre-action protocol;
(b)
whether it was reasonable for a party to raise, pursue or contest a particular
allegation or issue;
(c)
the manner in which a party has pursued or defended his case or a particular allegation or issue; and
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(d)
whether a claimant who has succeeded in his claim, in whole or in part,
exaggerated his claim.”
As can be seen ‘conduct’ is not just confined to ‘litigation conduct’ otherwise: “..a party to family proceedings who had behaved reprehensively for years could escape a costs award by being sure to behave impeccably once the litigation for which they were responsible had begun.”
(Re A and S (Children) v Lancashire County Council (No 2) (2013) EWHC 851) It must still be borne in mind that in relation to children cases costs orders will be rare due to the fact that previous authorities on the issue will still continue to apply under the new rules. (Note however the exceptions to enforcement and fact finding hearings (Re J (Costs of Fact Finding Hearing) (2009) EWCA Civ 1350; W v J (2011) EWHC 2777 but contrast public law fact finding hearings Re T (Children (2012) UKSC 36) Also worthy of note is the fact that the costs rules which applied to the old ‘Ancillary Relief’ proceedings, under which the general rule is that the court will not order one party to pay the costs of another party, has now been extended to all ‘financial remedy proceedings’ (subject to the exclusions within that definition as set out above) including the rule removing the reliance on ‘Calderbank letters’ (see in particular rule 28.3(4)–(8)) Rule 28.3(6) and (7) sets out the circumstances where, within financial proceedings, it may be appropriate to make a costs order, which will normally be based upon a party’s conduct before, or during, the proceedings themselves, which the accompanying PD 28A refers to as ‘litigation conduct’. It is clear from the list of circumstances to which the court must have regard that, although conduct includes that prior to the initiation of the proceedings, it is primarily litigation conduct as opposed to marital conduct that is the focus of the rule and will include:
(a)
any failure by a party to comply with these rules, any order of the court or any practice
direction which the court considers relevant;
(b)
any open offer to settle made by a party;
(c)
whether it was reasonable for a party to raise, pursue or contest a particular allegation or
issue;
(d)
the manner in which a party has pursued or responded to the application or a particular
allegation or issue;
any other aspect of a party’s conduct in relation to proceedings which the court considers
(e)
relevant; and
(f)
the financial effect on the parties of any costs order. (Rule 28.3(7))
The factors to be considered are the same as before, save that the practice
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directions now have mandatory force and moreover the pre-action protocols themselves are now contained within the practice directions. It is also worthy of note that this rule, together with rule 28.3(8), refers to ‘open offers’ and, as the accompanying practice direction sets out, the court is not able to take into account any offers to settle that are expressed to be ‘without prejudice’ or ‘without prejudice save as to costs’ when it comes to deciding what, if any, costs order to make (PD 28A, para.4.3). Thus, in order to be effective in justifying costs sanctions, all negotiations must be open. PD 28A also provides that when dealing with a party’s conduct the court will also have regard to their obligation to assist the court in the furtherance of the overriding objective (which, of course, permeates all family proceedings before the court) and, more particularly, the ethos of proportionality (PD 28A, para.4.4). If a party does wish to seek a costs order, notwithstanding the provisions of rule 28.3(5), then this should be made plain either in open correspondence or in a skeleton argument prior to the hearing itself and, in any event, where a summary assessment of costs is appropriate, then a statement of costs will need to be filed and served in Form N260 24 hours in advance of any hearing (PD 28A, para.4.5). Failure to file and serve such a statement in advance of the hearing, however, may not be fatal to a summary assessment (Bailey v IBC Vehicles (1998)) “What prejudice has there been to the paying party and how can that be alleviated?” (MacDonald v Taree Holdings Ltd (2001)). For recent post FPR 2010 decisions applying the new cost rules see: A Local Authority v A (2011) 2 FLR 162; R & R v A (Costs in Children Proceedings)(2011) EWHC 1158; GS v L (Costs) (No 2) (Financial Remedies Costs) [2011] EWHC 2116 and Ezair v Ezair (2012) EWCA Civ 893; A & S v Lancashire County Council [2013] EWHC 851; Re G (Contact Proceedings: Costs) [2013] EWCA Civ 1017.
3.29
Part 29: Miscellaneous
Part 29 is derived from Part X of FPR 1991 and contains rules governing a number of general or miscellaneous matters, including provisions previously contained in Part X of FPR 1991. It also includes rules drawn from CPR Part 40 relating to the drawing and service of orders. It is now a 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
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to the court. (Rule 29.1) The accompanying PD 29A contains guidance, and the requisite procedural requirements, where the court is considering joining the Crown within ongoing proceedings, where it is considering a declaration of incompatibility pursuant to the Human Rights Act 1998 or an order as to compensation pursuant to the Human Rights Act 1998, ss.7(1)(a) and 9(3). PD 29B provides the necessary requirements as to the citation of authorities in Human Rights Act cases. In essence, the authorities cited must be an authoritative and complete report (e.g. HUDOC). It also confirms that any application for a declaration of incompatibility under s.4 HRA 1998 (or any issue which may lead to the court considering such a declaration) must be dealt with by a High Court judge. Of particular note is rule 29.4 which outlines the procedure for withdrawing an application. Withdrawal of an application can only be made with permission of the court (for which the ‘paramountcy principle’ set out in S1 (1) Children Act 1989 applies) which must generally be sought by way of written request, setting out the reasons, which can be dealt with without the necessity of a hearing provided the other party has received notification of such intention and has been afforded an opportunity of responding to such a request (rule 29.4(6)). Having said that, such a request for permission to withdraw may be made orally to the court if the parties are present. Rule 29.6 provides for the security of documents in the custody of the court in proceedings concerning gender recognition. Rule 29.10 standardises the practice in drawing up orders and judgements. The now common practice of arranging for a legal representative to draw up and agree the wording of an order is formalised in rule 29.11. However, a word of warning: if you are charged with drawing up an order there is a duty to produce a draft that fairly reflects what the judge has decided or directed not to produce an order that reflected the directions that you would have liked. Solicitors and counsel have to give effect to court orders; they are not to attempt to manipulate them to their own or their client’s perceived advantage (see Webb Resolutions Ltd v JV Ltd (t/a Shepherd Chartered Surveyors) (2013) EWHC 509 Rule 29.12 deals with the access to and inspection of documents filed or lodged with the court - essentially non-parties require the permission of the court. An example of the operation of this rules is the case of HMRC v Charman and Another [2012] EWHC 1448 where it was held that in the particular circumstances of that case there was
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nothing rare or exceptional enough to displace the general rule that documents and evidence filed in financial proceedings on divorce would not normally be disclosed to HM Revenue and Customs:“As a general rule documents and other evidence produced in ancillary relief proceedings (now called financial remedy proceedings) are not disclosable to third parties outside the proceedings save that exceptionally and rarely and for very good reason they can be disclosed with the leave of the court. The fact that the evidence may be relevant or useful is not by itself a good enough reason to undermine the rule.”
Rule 29.15 provides that a judgment or order takes effect from the day when it is given or made unless the court specifies a later date which is the equivalent of CPR 40.7. Rather concerning however is the fact that FPR rule 29 does not contain any provision equivalent to CPR 40.8. CPR 40.8(1) provides that interest runs from the date of judgment unless the court orders otherwise. Therefore, if in doubt, any lump sum orders ought to make express provision for interest once the due date has passed. Finally, note the provision as to the ‘slip rule’ contained in rule 29.16. The operation of the slip rule, however, is limited to accidental slips or omissions or even to amendments to an order to give effect to the intention of the court, but not errors of substance. Matters deliberately included by the parties in an order drawn up and sealed by the court do not constitute an accidental slip or omission within that rule (Leo Pharma A/S and Anor v. Sandoz Ltd [2010] EWHC 1911) or to enable the court to have second thoughts or to add to its original order (Riva Bella SA v Tamsen Yachts GMBH (Costs) (2011) EWHC 2338) Rule 29.17 deals with the courts powers to transfer the proceedings between the High Court and the family court either of its own initiative or on the application of one or either of the parties. The Court can order such a transfer in 3 circumstances:
•
If the parties consent;
•
At a hearing to determine the issue of transfer;
•
Of its own initiative if the Court has notified the parties in writing of its
intention to order a transfer and no party within 14 days of such
notification has requested a hearing to determine whether a transfer
should be ordered.
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The High Court is intended to be reserved for cases involving the inherent jurisdiction of the High Court and abduction/ international cases. It will be able to transfer a case down to the family court. The High Court will also be able to transfer into itself a case currently proceeding in the family court. The family court cannot transfer a case to the High Court unless the order is made by a High Court judge sitting in the family court, or the case comes within the circumstances set out in PD 29C. For an application to transfer the proceedings to a different ‘Designated Family Judge area’ the Part 18 procedure must be used (Rule 29.18) Rule 29.19 sets out the procedure where there has been an allocation in relation to the proceedings without a hearing. Note the provisions of rule 4.3 do not apply in such circumstances. In essence a party can request the court to reconsider the allocation at a hearing. This can be dealt with at any hearing which has been listed upon allocation provided a request is made in writing no later than 2 days before the hearing and such request is notified to the other party or at any hearing where that party first had notice of allocation. There is also provision for the court to consider the request of its own initiative (r 29.19(5)) Where an allocation decision is made at a hearing the dissatisfied party’s only option is to appeal (PD30A para 4A.2)
3.30
Part 30: Appeals
Part 30 is derived from CPR Part 52 and Part VIII of FPR 1991 and creates a unified code of procedure for all appeals in family proceedings, save and except to the Court of Appeal which are still governed by CPR 52, and the Supreme Court. This Part applies not only to orders made after a contested hearing but also orders made by consent. This Part represents a significant shift in the previous procedure for appeals and constrains a party’s rights of appeal even further. Part 30 and PD 30A apply to appeals in the High Court and the Family Court but not to detailed assessment decisions which are still governed by the CPR. PD 30A usefully sets out in table format which court an appeal should be made to. With the implementation of the new single Family Court, the Practice Direction has been amended to provide for a table similar to that which can be found in PD52A to the CPR which has a table summarising precisely as to which level of Judge an
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appeal lies in any given situation subject to the ‘leapfrogging’ provisions in section 57 Access to Justice Act 1999. In summary appeals from the Family Court are dealt with as follows:
(a) A decision made by a bench of lay magistrates or a lay justice - appeal
to a circuit judge or a judge of High Court judge level sitting in the Family
Court if the appeal raises an important point or principle of practice (no
permission needed).
(b) A decision made by a district judge (except the Senior District Judge of
the Family Division or a District Judge (PRFD) in proceedings for a financial
remedy) - appeal to a circuit judge or a judge of High Court judge level
sitting in the Family Court if the appeal raises an important point or
principle of practice (permission needed).
(c) A decision made by a District Judge (PRFD) in proceedings for a financial
remedy - appeal to a judge of High Court judge level sitting in the Family
Court (permission needed).
(d) A decision made by a Senior District Judge of the Family Division in
proceedings for a financial remedy - appeal to a judge of High Court judge level sitting in the Family Court (permission needed).
(e) A decision made by a judge of circuit judge level - appeal to Court of
Appeal (permission needed).
A decision made by a cost judge - appeal to a judge of High Court judge
(f)
level sitting in the Family Court (permission needed).
(g) A judge of High Court judge level - appeal to Court of Appeal (permission
needed). It will be noted that an appeal from a decision made by lay justices now lies to a circuit judge of the family court. The accompanying Practice Direction 30A (para 4.5A) also usefully sets out the factors which the court is to have regard to when considering an application for permission to appeal a case management decision namely whether:
(a) the issue is of sufficient significance to justify an appeal;
(b) the procedural consequences of an appeal (e.g. the impact upon the
(c) it would be more convenient to adjourn the determination of the issue.
timetable) outweighs the significance of the case management decision;
Pursuant to rule 30.3, it is now necessary to obtain permission to appeal from every decision of a district judge or costs judge (except in cases where a party’s liberty is at stake, i.e. committal or secure accommodation). The procedure for seeking 243
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permission is set out in PD 30A. It should be noted that permission is now required for an appeal against the decision of a District Judge (Magistrates’ Court) Permission should be by way of an oral application at the end of the judgement at which the decision to appeal is made (rule 30.3/O v O (Procedure for Listing Applications for Permission to Appeal to the High Court) Baron J 14 July 2011) An application may also be made to the appeal court, if permission is not sought at the lower court or such permission, if sought, is rejected. In Re C(A Child) (2013) EWCA Civ 431 guidance was given as to the procedure to be adopted in cases where an application is made to the Court of Appeal for permission to appeal against the making of a Placement order:
•
The Appellants’ notice must be filed as soon as possible along with any
application for stay or other interim relief.
If a transcript of the judgement being appealed is not available then the
•
notice must be accompanied by whatever note of judgement is available
(even if unapproved) and a formal transcript ordered immediately which
the court from which the appeal is being brought must process
immediately.
•
The Respondents to such an Appeal must be informed immediately by the
Appellant of:
o
the fact of the making of the application; and
o
the date of any hearing of the application
At a ‘permission to appeal hearing’ the appeal court has the following options:
•
Grant or refuse permission on paper
•
List the permission application for an oral hearing. This is normally for
the attendance of the party appealing only, although the court can
indicate that both parties attendance is required, particularly if the
appeal hearing is to follow immediately on from the hearing if permission
were to be granted
The appeal court can give permission to appeal without a hearing notwithstanding the absence of the respondent if the appeal has a real prospect of success. The court can also go on to issue case management directions, however, orders for the admission of fresh evidence, which theoretically could be dealt with without a hearing, ought more properly be dealt with on notice (NLW v ARC [2012] EWHC 55)
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If the appeal court rejects the application for permission without a hearing the appellant can apply for one within seven days from service of the notice of rejection (see FPR r 30.3(6) and PD 30A, paras.4.14–4.16) Such application must be served on the respondents. However this option will not be available where permission is refused and an order is made under rule 30.3 (5A) denying such reconsideration on the basis that the application for permission is deemed to be totally without merit (PD 30A para 4.12) Four days before the oral hearing the appellant must set out in a brief statement:
•
The points to be raised at the hearing
•
The reasons why permission should be granted
•
Where the appellant is publicly funded, confirmation that a copy of the
reasons given by the appeal court refusing permission to appeal was
submitted to the LAA.
The Respondent need not attend the oral hearing unless required to do so (PD30A para 4.15) Permission is likely to be granted in cases where the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard (FPR r 30.3(7)) The concept of ‘real prospect of success’ means that it is incumbent upon the appellant to demonstrate that it is more likely than not that the appeal will be granted. “Real” means that the prospect of success must be realistic rather than fanciful: “Permission to appeal will only be given where the Court considers that an appeal would have a real prospect of success or there is some other compelling reason i.e. the prospect of success must be realistic rather than fanciful.” (Tanfern Limited v Cameron Macdonald (2000) 1 WLR 1311; AV v RM [2012] EWHC 1173) In the case of NLW v ARC [2012] EWHC 55, Mostyn J held that the concept of a real prospect of success meant a better than a 50/50 chance of success: “I would suggest the concept of a real prospect of success must mean generally speaking that it is incumbent upon an appellant to demonstrate that it is more likely than not that the appeal will be allowed at a substantive hearing” However in H v G (Adoption: Appeal) [2013] EWHC 2136, AV v RM (2012)EWHC 1173
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and CR v SR (Financial Remedies: Permission to Appeal) (2013) EWHC 1155 it was held that no further elaboration of these words is necessary or helpful as the rule simply requires a real prospect of success to be shown. In exercising such discretion, the court must also have regard to the over-riding objective set out in r 1.1 including considerations as to proportionality even where the appeal has a real prospect of success (HH v BLW (Appeal: Costs: Proportionality) (2012) EWHC 2199) Where the Appeal Court refuses permission to appeal without a hearing and considers that the application is totally without merit, it may then go on to make an order providing that the person seeking permission may not request the decision to be reconsidered at an oral hearing. Where permission is granted, the appeal bundle must be served upon each respondent within 7 days of receiving the order granting permission to appeal (PD 30A para 6.2) Where the appeal court gives permission to appeal on some issues only, it will either refuse permission on the remaining issues or reserve the question of permission on those remaining issues to the court hearing the appeal. If the court reserves the question of permission on the remaining issues the appellant must, within 14 days after service of the court’s order, notify the court and the respondent in writing as to whether the appellant intends to pursue the reserved issues. If the appellant intends to pursue the same, the parties must include in the time estimate for the appeal hearing their time estimate for consideration of the reserved issues (PD 30 Paras 4.18 and 4.19) Note, there is no appeal procedure from a decision to grant or refuse an application for permission to appeal (S 54 (4) Access to Justice Act 1999; PD 30A para 4.5; Re C (Transcripts: Permission to Appeal) (2013) EWCA Civ 1158; Cart v Cart (2013) EWCA Civ 1006). Should permission be granted, the appellant must serve an appeal bundle on each respondent within 7 days of receiving the order granting permission which must include the following additional documents:
•
Any notice and skeleton argument received from the Respondent;
•
Those parts of transcripts of evidence which are directly relevant to the
appeal (see paras 5.31 and 5.32 PD30A);
•
The order granting permission to appeal; and
•
any other document which the parties have agreed should be added to
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the appeal bundle
The appellant must provide the court with a time estimate for the hearing of the appeal for which the respondent has 7 days to indicate whether they agree or disagree with it. As stated, in addition to the applicant’s notice of appeal (rule 30.4 – N161), a respondent may also file and serve a notice of appeal (rule 30.5 – N162) – for the procedural requirements, see para.5 of PD 30A. Where an appellant seeks for the first time to rely on an issue or remedy under the Human Rights Act 1998 they must also include in the appeal notice the information required by rule 29.5(2) for which PD29A will apply as modified. (PD 30A paras 5.2 and 5.3) The appeal notice itself can also incorporate any incidental applications in addition to the appeal itself (PD 30A para 5.7) If the respondent themselves wish to ask the appeal court to vary the order in any way, then they too must obtain permission to appeal in the same manner as the appellant. Similarly, if the respondent wishes to appeal, or to invite the appeal court to uphold the order but for different or additional reasons, then they must also file an appeal notice, failure to do so will mean that they will not be able to pursue such matters unless the permission of the court is given. Appeals from circuit judges lie to the Court of Appeal and continue to be covered by CPR Part 52. The general time limit for appeals is 21 days (unless the court orders a different period (rule 30. (2)(A))) A shorter period of 7 days applies in the case of interim care orders and interim supervision orders as well as an appeal against a case management decision (rule 30.4(3)) An application to vary the time limit for filing an appeal notice must be made to the court with reasons for the delay; the parties are unable extend the time limit by agreement. However, any party who unreasonably opposes such an application may find themselves at risk as to costs (PD30A paras 5.4 – 5.6) All appeals are in the form of a review of the decision appealed against, unless any specific and applicable rule or practice direction provides for otherwise, or the court decides that it would be in the interests of justice to hold a re-hearing. The appeal court has all the powers of the lower court.
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In addition to what was discussed above in respect of the routes of appeal and the procedural requirements, it is worth noting that permission to appeal from a district judge in relation to a detailed assessment of costs now also requires permission as in the case of civil proceedings. Furthermore, under the rules and practice directions, the only way to challenge an order made by consent will now be by way of appeal which provides greater certainty and clarity than was the case before (PD 30A, para.14.1). All parties to an appeal must comply with PD 30A and set out the justification for the appeal in light of rule 30.12(3) and whether such appeal is on the basis of a point of law or a finding of fact. An important stipulation in PD 30A is that where the advocate, or the court from whom permission to appeal is sought, considers that the judgment contains a material omission or inadequate reasons, before an appeal is launched, the lower court must be given the opportunity of considering matters thus significantly restricting one’s ability to use such omission as the basis for an appeal (PD 30A, paras.4.6, 4.8 and 4.9). Accordingly, if a judgment appears to be incomplete or deficient, counsel is obliged to invite the judge to expand or supplement it rather than to rely on the deficiency as grounds for an application for permission to appeal. However, when doing so, the judge is only allowed to expand upon his reasons in further support of his stated conclusions, not to reverse a previously stated conclusion. (Re L-B (Children) (2012) EWCA Civ 984) Indeed, in the case of Re A and L (Children) [2011] EWCA Civ 1205, where the adequacy of the trial judges reasoning was in issue after a fact finding hearing, it was held that it was appropriate to remit the case back to him in order for the judge to clarify his reasoning, thus the appeal was adjourned part-heard on that basis pending the judge’s response to a specific list of questions. In addition the following guidance was given:
1.
It is the responsibility of the advocate, whether or not invited to do so by
the Judge, to raise with the Judge and draw attention to:
•
any material omission in the Judgment,
•
any genuine query or ambiguity which arises,
•
any perceived lack of reasons.
Where permission is sought from the Trial Judge to appeal on the ground
2.
of lack of reasons, the Judge should consider whether his judgment
is defective for lack of reasons and if he concludes that it is, he should set
out to remedy the defect by the provision of adequate reasons.
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3.
If neither of the above has been done the Court can either proceed to
deal with the appeal on the basis of the Judgment as it was or remit the
case to the Trial Judge for additional reasons or clarification to be
provided, usually with an indication of distinct areas where clarification is
required.
4.
Given that a split hearing is merely part of the whole process of trying a
case and not a separate exercise it is also open to a Judge to revisit
findings later in the case in the light of subsequent developments.
PD 30A, para.5.8 sets out the documents which the appellant needs to file with their notice (para.5.1) which must include a Skeleton Argument (Form N163) (the procedural requirements for which are set out in paragraphs 15.13-5.22) and appeal bundle (para.5.9). The appeal bundle itself should be agreed. If this is not possible, the respondent should prepare and file a supplemental bundle. The skeleton argument must contain: “a numbered list of the points which the party wishes to make. These should both define and confine the areas of controversy. Each point should be stated as concisely as the nature of the case allows.”
The Respondent’s skeleton argument will similarly need to respond to such points. Where case law is cited, the skeleton argument must set out the proposition of law that the case demonstrates (identifying the relevant page or paragraph). Where more than one authority is cited in support of a proposition, brief reasons must be given for doing so. Note it is good practice to:
•
Agree the bundle of authorities;
•
File them at least 7 days before the hearing;
•
Limit them to no more than 10, unless the nature of the appeal makes this
unavoidable;
•
Supply the relevant authorities from an official source;
•
Highlight the relevant passages in the authorities which the parties are
seeking to rely upon.
All documents extraneous to the issues comprising the appeal must be excluded. Furthermore, where the appellant is represented, a certificate should be incorporated to the effect that these provisions have been fully complied with. Where the judgement to be appealed against has been officially recorded, an approved copy of a transcript of it will need to filed with the appeal notice, failing which the following will suffice:-
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•
A written copy of the judgement endorsed with the judge’s signature;
•
A copy of the written Reasons (Lay justices or District Judge (Magistrates
Court) only);
•
An agreed note of the judgement submitted to the judge for approval or,
if no agreement, copies of the rival versions together with an explanatory
letter to the Judge;
An Advocates note of the judgement (where the appellant is
•
unrepresented) Note also the guidance in Re GB (Children) (2013) CA that where practitioners are considering ordering a transcript (to enable them to file a notice of appeal) they should be mindful of the following:
(a) the preparation of, and authorisation of the payment for a transcript,
might take time. Practitioners should therefore ask themselves whether a
transcript is an essential prerequisite before filing a notice of appeal, or
(b) practitioners should consider filing a notice of appeal even though a
before an application for permission to appeal is considered; transcript might not be available;
(c) the judge at first instance could be contacted if necessary to speed up
the process;
(d) pursuit of a transcript, which might be peripheral, should not affect the
consideration of an application for permission to appeal.
The appeal bundle itself must also contain a signed certificate confirming that the procedural requirements for the appeal bundle are understood and have been complied with. Where it is not possible to file any of the required documents, this must be indicated and an estimate provided as to when they can be filed. An appeal does not operate as a stay on the decision appealed against unless the court orders otherwise (rule 30.8). Any application for a stay should therefore be sought in the appeal notice. When deciding whether or not to grant a stay pending an appeal the general principle is to view such an application through the welfare prism that overarches all family proceedings (NB v Haringey LBC (2011) EWHC 3544). To that extent guidance can be had from the case of Wenden Engineering Services Co Ltd v Lee Sing UEY Construction Co Ltd HCCT No 90 of 1999:
•
The Court must take into account all the circumstances of the case;
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•
A stay is the exception rather than the general rule;
•
The party seeking a stay must provide cogent evidence that the appeal
will be stifled or rendered nugatory unless a stay is granted;
•
The court must apply a balance of harm test in which the likely prejudice
to the successful party must be carefully considered;
The court must take into account the prospects of the appeal
•
succeeding. Only where strong grounds of appeal or a strong likelihood
of success is shown should a stay be considered.
Rule 30.9 deals with applications for amendment to the appeal notice which, if not substantial, should normally be dealt with at the hearing. Rule 30.10 empowers the appeal court to strike out the whole or part of an appeal, set aside a permission to appeal either in whole or in part, or impose conditions (see for example TF v FF [2013] EWHC 390 - although it is debatable as to whether or not the court has power to impose a cap on the costs incurred in relation to an appeal) or limit the issues on which an appeal may be brought, all of which again reinforces the court’s wide powers of case management. Note also the cross-over with security for costs contained in FPR 2010, Part 20 and PD 20A. Furthermore, if the appeal court strikes out, refuses permission, or dismisses an appeal, the court must then go on to consider whether or not a civil restraint order should be made. Rule 30.11 sets out in detail the powers of the appeal court, namely that it may:
•
Affirm, set aside, or vary any order or judgement made or given by the
lower court;
•
Refer any application or issue for determination by the lower court;
•
Order a new hearing;
•
Make orders for the payment of interest;
•
Make a costs order.
This includes the power to re-hear the matter. The appeal court may also exercise its powers in relation to the whole or part of an order of the lower court. FPR r 30.12(2) provides that oral evidence will not be heard, nor evidence that was not received by the Court below allowed, unless the court otherwise decides in its discretion to do so. The test for the admission for such evidence is as follows:
1.
Is it relevant to the issue before the Court?
2.
Would it be likely to have an important influence on the case?
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3.
Is it credible, reliable and cogent?
4.
Is it proportionate to admit such evidence?
5.
Could the evidence have been obtained with reasonable effort at the
hearing below?
6.
Would it be otherwise unjust to the Appellant to exclude such evidence?
(X v Y (Maintenance Arrears: Cohabitation) (2012) EWCA 1; Ladd v Marshall (1954) 1 WLR 1489) Rule 30.12(3) sets out the circumstances in which the appeal court will allow an appeal; namely, where the decision is either (1) wrong or (2) unjust because of a serious procedural or other irregularity. The first ground of appeal (wrong decision) can be based on the lower court being wrong either as to the law (e.g. failure to give proper reasons; a failure to take account of relevant factors, or to have regard to irrelevant factors, the Court thus misdirecting itself, or in applying the appropriate statutory test) or, to a more limited degree, fact, or in the exercise of any discretion (where the decision is outside the “generous ambit within which a reasonable disagreement is possible” (G v G (1985) 1 WLR 647)) The Court must also remind itself of the dicta in Piglowska v Piglowska (1999) 2 FLR 763:
•
The advantage of the lower Court in seeing and hearing the witnesses when evaluating the facts found and weighing and quantifying the
relevant factors; • Proportionality:
“…... there is the principle of proportionality between the amount at stake and the legal
resources of the parties and the community which it is appropriate to spend on resolving the
dispute. In a case such as the present, the legal system provides for the possibility of three
successive appeals from the decision at first instance.... This cannot be right. To allow successive
appeals in the hope of producing an answer which accords with perfect justice is to kill the
parties with kindness”
•
The taking of a too narrow textual analysis in determining whether the
court has misdirected itself in law;
The assumption that, unless demonstrated otherwise, the judge knew of
•
the correct judicial functions and the matters to be taken into account.
Reference should also be had to the case of Tanfern Ltd v Cameron-Macdonald and anor (2000) 2 ALL ER 801 where for an appeal to be successful the decision had to be ‘wrong’ in so far as the substance of the decision is concerned or, where the
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exercise of discretion applies, where the court had ‘exceeded the generous ambit within which a reasonable disagreement is possible’ or the decision can be shown to be ‘plainly wrong’ (see Re MA (Care Threshold) (2009) EWCA Civ 853) Prior to the new rules coming into force in V v V (Financial Relief) (2005) 2 FLR 697 it was held that any appeal should be allowed only if, in conducting the necessary balancing exercise, the judge had taken into account matters that were irrelevant, or ignored matters that were relevant, or had otherwise arrived at a conclusion that was “plainly wrong” or had “erred in law”. In A v L (2011) EWHC 3150 it was held that this remains the position post implementation of the new Rules. In TG (A Child) (2013) EWCA Civ 5 it was held that a case management decision would only be interfered with in limited circumstances where: “it is satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.” However in the case of Re B (Care Proceedings: Appeal) 2013 UKSC 33 it was held that ‘wrong’, in the context of an evaluative determination (as opposed to one of judicial discretion) such as with whether or not the s. 31 CA 1989 threshold is met for a care order, means just ‘wrong’, not ‘plainly wrong’ or ‘manifestly wrong’ ‘plainly’ adding nothing helpful. “In ordinary language there is a difference between wrong and plainly wrong. If a plainly wrong test is adopted, it will be possible for an appellate court to hold that the judge was wrong to make an adoption order but was not plainly wrong to do so.” Furthermore, in the context of public law Children proceedings, a determination as to whether the threshold conditions are satisfied so as to justify the making of a care order is not in itself an exercise of discretion but an evaluation of the facts. For a practical demonstration of this see V v V (Prenuptial Agreement) (2011) EWHC 3230. As far as the second ground of appeal (procedural irregularity) the court only has the power to interfere if the procedural or other irregularity is a serious one and that the irregularity resulted in an ‘unjust decision’. Rule 30.13 sets out the requirements of the ‘leap-frog’ procedure. In essence, if an appeal raises an important point of principle or practice or there are some other compelling reasons why the Court of Appeal should hear the appeal then the County Court and High Court can be bypassed. However, this procedure
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does not apply to an application for permission to appeal. Rule 30.14(1) deals with the re-opening of appeals by way of ‘set-aside’ applications in the High Court for which permission is required. The language of the rule denotes that the circumstances for re-opening such an appeal must be exceptional and such as to make re-opening the proceedings necessary ‘in order to avoid real injustice’ and where there is no alternative remedy. In the Family Procedure Rules doing away with the previous myriad of rules in so far as appeals go this also happens to include the old County Court Rules 1981 and in particular Order 37 rule 1 which deals with the power to order a rehearing where no error of the court is alleged. Taken at face value, therefore, the new rules appear to make no specific provision for applications to review and revisit findings in light of subsequent evidence (such as findings made at a ‘Finding of Fact Hearing’) or to set aside, or seek permission to appeal out of time, an order made in circumstances akin to that in Barder v Barder (Caluori Intervening) (1987) 2 FLR 480 A “Barder Appeal’ arises where, after the final order, a fundamental assumption on which the order was made alters in such a way as materially to invalidate it such that it is possible to appeal out of time against it. The following conditions must be met:
1.
The new events must have occurred “which invalidate the basis, or
fundamental assumption, upon which the order was made” and which
are such that if permission out of time were granted ‘the appeal would be
certain, or very likely, to succeed.’
2.
Those new events have occurred within a relatively short time of the order.
3.
The application must have been made reasonably promptly.
4.
Third parties, who may have acquired property the subject of the
litigation, should not be prejudiced.
According to a strict interpretation of FPR 30.12(3) it may be argued that a ‘Barder Appeal’ cannot be classified as a ‘wrong’ or ‘unjust’ decision on the basis of the evidence that was before the court at the time the original order was made and therefore it is a moot point as to whether such appeals are technically covered by the rules (see Cart v Cart (2013) EWCA Civ 1006)
3.31
Part 31: Registration of orders under the Council Regulation, the Civil Partnership (Jurisdiction 254
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and Recognition of Judgments) Regulations 2005 and the Hague Convention 1996
Part 31 makes provision for the recognition, non-recognition and registration of various orders. It is derived from Part VII of FPR 1991 and contains rules to support the articles relating to the registration of orders under Council Regulation (EC) No. 2201/2003 of 27 November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility. It is supported by PD 31A. It also makes provision for the recognition and registration of judgments to which the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005, SI 2005/3334 apply. Finally, provision is made for the recognition, non-recognition and registration of measures to which the 1996 Hague Convention applies. The rules provide a comprehensive procedure for registration, recognition and enforcement in England and Wales of judgements made by a court of another Member State or Contracting State and vice versa. Such applications must be made to the principal registry. Rule 31.14 regulates applications for recognition of judgments only. Appeals in respect of recognition and registration of judgments are dealt with following the procedure set out in the practice direction regulating appeals, namely PD 30A. Generally, a registered order cannot be enforced until after the period for appeals has ended (Rule 31.17). The time limit for appeals is set at one or two months (two months if the person bringing the appeal is habitually resident outside the UK). The Family Procedure (Amendment) (No.2) Rules 2012 (2012 No. 1462), which came into force on the 1st July 2012, has amended rule 31.17 to give the court a discretion to permit urgent enforcement, where necessary, to secure a child’s welfare, notwithstanding the general position that enforcement is suspended pending expiry of relevant appeal periods. Accordingly, enforcement under Part 31 of registered orders in urgent cases can take place at once, if the court so decides, when this is necessary to ensure the welfare of the child concerned, even if the appeal period
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has not expired. This amendment ensures compliance with the judgment of the Court of Justice of the European Union in Health Service Executive v. SC and AC, Attorney General intervening (case no. C-92/12), which determined that the possibility of appeals against a decision on registration of an order from another Member State on the cross-border placement of a child under Article 56 of the Council Regulation (EC) No 2201/2003 on jurisdiction, recognition and enforcement in matrimonial matters and matters of parental responsibility should not result in automatic suspension of enforcement of a registered order during the time limit for appealing where the best interests of the child require enforcement as a matter of urgency. The case concerned an urgent secure placement. The Court said that in urgent cases, so that the Council Regulation can operate effectively, the registration of the order must be done quickly and appeals against that registration decision must not have the effect of suspending enforcement. The Rule change therefore permits the court to enforce a registered order, before the end of the appeal period, when this is necessary to secure the welfare of the child concerned, the overriding objective being to ensure that very vulnerable children from other Member States can be placed urgently in appropriate institutions in England and Wales where this is necessary for their welfare.
3.32
Part 32: Registration and enforcement of orders
Part 32 (which is broken down into chapters with subsections for ease of navigation) is derived from Part VII of FPR 1991 and in its original format, prior to the creation of the single family court, contained rules relating to the registration of orders under the Maintenance Orders Act 1950 (Chapter 2), the Maintenance Orders Act 1958 (Chapter 3) and the registration and enforcement of custody orders under FLA 1986 (Chapter 4). Although the general tenor of the rules was to unify all family proceedings, the provision in respect of proceedings in the magistrates’ court, pursuant to the Maintenance Orders Act 1950, was, prior to the creation of the family court, contained in rules made pursuant to s.144 of the Magistrates’ Courts Act 1980. Since the creation of the single family court ‘magistrates’ courts’ no longer deal with these proceedings and enforcement is now the sole province of the High court. The rules also incorporate procedure in relation to enforcement which were previously set out in the Magistrates’ Courts (Enforcement or Variation of Orders
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Made in Family Proceedings and Miscellaneous Provisions) Rules 2011 (S.I 2011/1329) In so far as applications to register a subsisting maintenance order are concerned, there is no absolute right to registration and the court has an overriding discretion. However, a nominal order for spousal maintenance only will not be registered and an order for maintenance pending suit or interim financial provision will only be registered in special circumstances. Application is made by lodging at court Form D151 together with the prescribed documents. Chapter 2 Section 2 deals with registration of orders of the High Court (Rules 32.3 – 32.5) as well as the family court (Rules 32.6 – 32.6B) pursuant to the 1950 Act. Rule 32.3(1) sets out the procedural requirements. Note the Part 19 procedure applies to applications to cancel the registration of a High Court order pursuant to Section 24(2) of the 1950 Act. (Rule 32.5A) The Part 18 procedure applies to applications to adduce evidence under Section 22(5) of the 1950 Act in respect of maintenance orders made in the Family Court. Upon receipt the Court will send a transcript or summary of any evidence taken. (Rule 32.6B) The Part 18 procedure must also be used in respect of applications to adduce evidence pursuant to Section 21(2) of the 1950 Act, to apply to vary a Scottish Order or an Northern Irish Order as well as to applications by an interested party to vary the method of payments pursuant to section 1(7) of the Maintenance Enforcement Act 1991 (Chapter 2 Section 3) Part 33 of the Rules apply to enforcement or cancellation of the registration of a Scottish or Northern Irish order in the High Court. For Registration of a Maintenance order in the family court under the 1958 Act as set out in Chapter 3 the procedure is governed by FPR 2010 r 32.15. For registration in the family court of an order registered in the High Court the procedure is governed by Rule 32.16A. The procedure for variation, remission, discharge or cancellation of registration of an order registered in the family court is set out in Rule 32.19A. Rule 32.22B applies where the family court exercises its power under Section 4A (2) of the 1958 Act to make a means of payment order (Section 1(7) Maintenance Enforcement Act 1991. The Part 18 procedure applies in respect of applications from an interested party to
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vary the method of payment (Rule 32.22C) Applications under FLA 1986, s.28 (2) must be made in accordance with the Part 19 procedure (rule 32.28(3)). Rules 32.26 and 22.28 sets out what the court must do in order to register the order. Chapter 5 makes provision for a Court Officer to take enforcement proceedings on behalf of the payee if they so request in writing in relation to certain orders for periodical payments unless it appears unreasonable in the circumstances to do so. Some administrative procedures which were contained in the previous rules are now contained in the accompanying practice direction (PD 32A).
3.33
Part 33: Enforcement
Part 33 is derived from Part VII of FPR 1991 and CPR Parts 70–74 and applies to applications for enforcement in the High Court and county court only of money orders. The reason for the omission of enforcement in the magistrates’ court is due to the fact that such proceedings are not ‘family proceedings’ and are therefore outside the scope of the Family Procedures Rules Committee’s terms of reference. Worthy of note is the fact that the rules apply to undertakings as well as to orders which can now be enforced as if they were an order; PD33A making specific provision in relation to the enforcement of such undertakings. The application notice for enforcement of an order for the payment of money must be accompanied by a statement setting out the amount due under the order, how such sum has been arrived at and be verified by a statement of truth. (FPR r 33.3(1)) The rules also now provide for what is known as a ‘pay-up summons’ (Form D50K). This provides that an applicant who wishes to seek to enforce an order for the payment of money may either apply for an order specifying the method of enforcement or for an order for ‘such method of enforcement as the court may consider appropriate’ (rule 33.3(2)). The latter application is a welcome addition to the courts enforcement armoury and upon receipt of such an application the court will order the debtor to attend court for what is effect will be an ‘oral examination’ as to their means so as to decide the appropriate method of enforcement. (CPR 71.2(6) and (7)) The rationale for this is to provide greater flexibility to the court and in particular assist the ever-increasing number of litigants in person who appear before it. Under the previous rules, it was the court’s experience that quite often an applicant 258
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for enforcement had applied for a method of enforcement that would have been ineffective in the particular circumstances of the case leading to delay, increased costs, injustice and the potential increase in insecurity for any child adversely affected by the non-payment. Thus, an application can now be issued with the applicant leaving it to the court to decide what form of enforcement is the most appropriate. When the applicant has gathered all the information necessary for such a decision then it is envisaged that they will then request the judge to make the appropriate order. (Note, the appropriate warning to the Respondent of such a possibility is contained within Form D50K) Upon making the application, an order requiring the respondent to attend court to give information about his or her means will be made for which CPR 71.2(6) & (7) applies. (FPR r 33.3(3)) At such a hearing the debtor must produce all evidence about their means and assets including anything specifically requested in the notice of application. Rule 33.5 provides that Part 37 applies to the enforcement of an order made within family proceedings by way of committal. Chapter 2 deals with applications for committal by way of judgment summons. The procedure is set out in FPR r 33.10. The judgement summons and supporting statement must be served on the debtor personally not less than 14 days before the hearing. The debtor must also be paid, or offered, a sum reasonably sufficient to cover their travelling expenses to and from court. Personal service of an application to commit is essential. Rule 33.14(1) sets out the requirements which must be observed at the hearing. Note that the debtor cannot be compelled to give evidence, however it is clearly in their interests to do so. (See Bhura v Bhura [2013] EWHC 3633; Mohan v Mohan [2013] EWCA Civ 586) Rule 33.14(1)(c) requires the court to have regard to the debtor’s convention rights and Rule 33.14(1)(c)(i) in addition requires the Judgement Creditor to prove that the debtor has the means to pay the sums at the date of the Order. The phrase ‘means to pay’ has the ordinary and natural meaning of income or assets of some kind. It does not include potential earning capacity (Constantinides v Constantinides [2013] EWHC 3688)
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Rule 33.16 sets out the various options to the court on the hearing of a judgement summons. Note, the Court must consider alternatives to an order for immediate committal (Zuk v Zuk (2012) EWCA Civ 1871) The alternative to a committal order is to give the debtor time to pay. If a committal order is made, Section 5 of the Debtors Act 1869 places a limit on a maximum prison term of 6 weeks (See Zuk v Zuk above) Changes in terminology should also be noted arising from harmonisation with the CPR. The terms ‘garnishee’ and ‘oral examination’ are replaced by ‘third party debt orders’ (Chapter 7) and ‘orders to obtain information’ (Chapter 6). However, in a departure from such harmonisation and unification, the rules provide that the relevant parts of the CPR are to apply to certain enforcement proceedings (more particularly, enforcement of a judgement debt and maintenance order) with various not insubstantial modifications, rather than incorporating them with their ‘family-specific’ modifications as with the rest of the rules (rules 33.19 and 33.19A, ). This is also the case with charging orders in Chapter 8 (rule 33.25) where, with various modifications, CPR Part 73 will regulate the procedural requirements. The author respectfully submits that this is an area which has sustained the previous bad practice, rather than eradicating it, and surely would it not have been more in keeping with the ethos of simplifying the rules to set out in full the procedural requirements but with their proposed modifications particularly where they are reasonably substantial? Now we have rules 33.19, 33.19Aand 33.25 which must be read together with CPR Part 73 and CCR Order 27 thus making navigation more complex. The rules also strengthen the provisions regarding undertakings and in particular emphasise the consequences of non-compliance with a financial undertaking. (Note what was said earlier in respect of financial undertakings contained in consent orders made within applications for a financial remedy – see 3.10) As mentioned at the outset, the rules reflect the fact that an undertaking is as enforceable as a court order which is now backed up by a corresponding Practice Direction 33A – Enforcement of Undertakings (para.1.3). Such an undertaking must have a warning notice endorsed on it setting out the consequences of breach by the person giving it with a statement to the effect that they understand what consequences might flow from not abiding by its provisions. The wording of both the notice and statement is set out in PD 33A and differs depending upon whether or not the undertaking is a financial undertaking or a non-financial undertaking.
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3.33.1 Non-financial warning and undertaking
1.
‘You may be sent to prison for contempt of court if you break the promises
that you have given to the court.’
‘I understand the undertaking that I have given, and that if I break any of
2.
my promises to the court I may be sent to prison for contempt of court.’
3.33.2 Financial warning and undertaking
1. “If you fail to pay any sum of money which you have promised the court
that you will pay, a person entitled to enforce the undertaking may apply
to the court for an order. You may be sent to prison if it is proved that you–
(a) have, or have had since the date of your undertaking, the means to
pay the sum; and
(b) have refused or neglected, or are refusing or neglecting, to pay
that sum”.
2.
‘I understand the undertaking that I have given, and that if I break my promise to the court to pay any sum of money, I may be sent to prison.’
Such an undertaking need not be given personally before the court; it can be endorsed on a court copy of the undertaking or may be filed in a separate document such as a letter. This might prove useful in FLA 1996 proceedings in respect of personal protection proceedings where matters are disposed of by way of an undertaking and thus may avoid attendance by the parties, or indeed their representatives, provided the court is satisfied that the applicant will be adequately protected by such an undertaking as opposed to an order (FLA 1996, ss.46 (3) and (3A)). A full explanation of the Debtors Act 1869 and its provisions in relation to the RSC and CCR is also given in PD 33A.
3.34
Part 34: Reciprocal enforcement of maintenance orders
Part 34 is derived from Part VII of FPR 1991; the Magistrates’ Courts (Reciprocal Enforcement of Maintenance Orders) Rules 1974, SI 1974/668; the Magistrates’ Courts (Reciprocal Enforcement of Maintenance Orders) (Hague Convention Countries) Rules 1980, SI 1980/108; the Magistrates’ Courts (Reciprocal Enforcement of Maintenance Orders) (Republic of Ireland) Rules 1975, SI 1975/286; and the
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Magistrates’ Courts (Reciprocal Enforcement of Maintenance Orders) (United States of America) Rules 1995, SI 1995/2802. Part 34 (which is again broken down into Chapters, Sections and Sub Sections) contains rules relating to the Maintenance Orders (Facilities for Enforcement) Act 1920 (Chapter 1); the enforcement of maintenance orders under Parts 1 and 2 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (Chapter 2) and the enforcement of maintenance orders under the Civil Jurisdiction and Judgments Act 1982, Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Judgments Regulation’) and the Lugano Convention 2007 (Chapter 3). The main rules are modified in relation to their application to the 1980 Hague Convention Countries, the Republic of. Ireland and the USA respectively, such modifications being set out in full in the annexes to PD 34A. The rules have also been simplified with provisions directed to court officials contained in PD 34A which also makes provision relating to payment of sums due under registered orders and the rules relating to applications generally. PD34E applies in relation to the notification of proceedings in a Hague Convention Country or in the USA and also supports the procedure set out in Chapter 3. Focusing on Chapter 3 itself specific provision is made by FPR 34.32 and PD 34A in relation to payments under registered orders. Rule 34.34 provides that where the court receives notice that a maintenance order registered in that court, which by virtue of the provisions of the Judgments Regulation has been varied or revoked by a competent court in another Member State of the European Union, the court officer must:
(a) note against the entry in the register that the original order so registered
has been varied or revoked, as the case may be; and
(b) send notice of the noting of the variation or revocation, as the case may
be, by post to the payer and payee under the order.
Rule 34.36A provides that at any stage of the proceedings in relation to the registration of a maintenance order, the court may give directions concerning the conduct of the proceedings including a stay and the provision of documentation and translations. Rule 34.38 sets out the requirements relating to the admissibility and authentication of documents used in proceedings within contracting states.
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Such documentation includes a summary of the evidence given in court which is admissible as evidence of any fact stated within it to the same extent as oral evidence of that fact. Before an English decision is enforceable in another member state it has to be declared enforceable in that state. The procedure for this is governed by rule 34.39. The applicant applies in writing to the relevant court officer for a certified copy of the order to be enforced specifying the names of the parties to the proceedings, the date, or approximate date, of the proceedings in which the maintenance order was made and the nature of those proceedings, the member state in which the application for recognition or enforcement has been, or is to be made, and the postal address of the applicant. (FPR 34.39 (2) (3) & (4)) On receipt of the application the court officer sends a copy of the order to the applicant, certified accordingly, together with a completed extract from the decision confirming that the decision is enforceable. Rule 34.40 provides that Rules 74.12 (application for a certified copy of a judgment) and 74.13 (evidence in support) of the CPR apply in relation to an application under Article 40(2) of the Maintenance Regulation for a certified copy of a judgment relating to maintenance obtained in the High Court or the family court, or for an extract relating to that judgment in the form of Annex II to that Regulation, as they do to applications under section 12 of the 1982 Act or article 54 of the Lugano Convention. PD 34B deals with the procedure for tracing parties who reside in Australia, Canada, New Zealand and South Africa for the purposes of obtaining or enforcing maintenance orders pursuant to the Maintenance Orders (Facilities for Enforcement) Act 1920 or Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972. Application is made on Form D312 (principal registry of the Family Division) or Form D85 (county court) and must be supported by a written undertaking that any address received in response to such an enquiry will not be disclosed or used except for the purposes of the proceedings. The Family Procedure (Amendment) Rules 2011 No. 1328, which came into force on the 18 June 2011, amend the Family Procedure Rules to take account of the application of the “Maintenance Regulation” (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations) in the United Kingdom from 18th June 2011. The Rules also make minor amendments to the procedures regarding international 263
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jurisdiction and enforcement of maintenance decisions. Rules 5, 7, 9, 10, 11, and 14 amend existing rules to enable an applicant for maintenance from another Member State to apply using the Maintenance Regulation forms rather than the usual court forms. Rules 8 and 10 amend existing rules on service of documents to reduce potential risks of violence to the respondent resulting from the applicant discovering the respondent’s whereabouts as part of the process of service. Rule 12 provides a procedure for cases where a respondent fails to attend a hearing to establish maintenance in cross border cases. Rule 13 provides a procedure for cases where questions as to the court’s jurisdiction to make a maintenance decision arise, or a stay of proceedings is sought. Rules 17 to 31 make amendments to Part 34 of the FPR 2010 (concerning the reciprocal enforcement of maintenance orders) to ensure that proceedings under the Maintenance Regulation are covered. Rule 32 makes provision regarding stays, documents and translations required by the courts of England and Wales in relation to enforcement of certain international maintenance decisions. Rules 33 to 37 make amendments regarding procedures in England and Wales for the enforcement of maintenance decisions in other Member States (and States party to the Lugano Conventions) A new Practice Direction 34C (Applications for Recognition and Enforcement to or from European Union Member States) was brought into force on 31st October 2011. Notwithstanding this, PD34A remains in force unamended, notwithstanding the application of the EU Maintenance Regulation (Council Regulation (EC) No 4/2009) from 18 June 2011. The Family Procedure (Amendment No.4) Rules 2012, which came into force on the 20th December 2012, amend the Family Procedure Rules 2010 to take account of the application of the Convention on the International Recovery of Child Support and other forms of Family Maintenance agreed at The Hague on 23 November 2007 (“the 2007 Hague Convention”) in England and Wales. By virtue of Council Decision 2011/432/ EU, the 2007 Hague Convention will be concluded by the European Union on behalf of all Member States at a date to be determined after the 10th December 2012, and that conclusion will require Member States (except Denmark) to apply the Convention.
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Further provision is also made in relation to applications through Central Authorities under Council Regulation (EC) No 4/2009 of 18th December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations (“the Maintenance Regulation”). Rules 5, 7, 9, 10, 11, 14, 15 and 17 amend the FPR 2010 to enable an applicant, wishing to establish or modify a maintenance decision in England and Wales, to apply using the standard forms prepared by the Permanent Bureau of the Hague Conference (“the Hague forms”) for use with the 2007 Hague Convention rather than the usual court forms. The Hague forms, like the Maintenance Regulation forms, do not contain a statement of truth, and rules 9, 11, 14 and 15 ensure, firstly, that neither the applicants nor the respondent in such cases is automatically required to verify their financial statements by a statement of truth; and secondly, that the court can, at its discretion, require such verification during the course of proceedings. Rules 15 and 17 also ensure that the court has discretion to allow a party to rely on evidence contained in an application form which has not been verified by a statement of truth. Rule 6 addresses the problem that a foreign applicant applying for establishment or modification of maintenance through the Central Authority system of the Convention or the Maintenance Regulation will probably not be in the position of being able to request specifically that the Court Officer issues their application. The request is therefore deemed to be made in cases where the Lord Chancellor (as Central Authority for England and Wales) forwards an application under either instrument. Rules 8 and 10 similarly amend the rules on service of documents to reduce potential risks of familial violence to the respondent resulting from the applicant discovering the respondent’s whereabouts as part of the process of service. Rule 12 adds questions of jurisdiction under Article 18 of the 2007 Hague Convention to the procedure for determining disputes as to the court’s jurisdiction in international cases. Rules 13 and 30 make provision to ensure that the court will provide the necessary information or documents to the Lord Chancellor (as Central Authority) when requested for the purposes of the Central Authority’s functions under the Maintenance Regulation or the 2007 Hague Convention. Rules 18 to 33 make amendments to Part 34 (concerning reciprocal enforcement of
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maintenance orders) to ensure that proceedings for recognition and enforcement under the 2007 Hague Convention are covered. For cases concerning the Republic of Ireland, or those European Union Member States that are Contracting Parties to the 1973 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, reference should be had to PD 34C, which identifies and provides useful guidance as to the transitional arrangements for these cases generally.
3.35
Part 35: Mediation Directive
This Part applies to mediated cross-border disputes that are subject to Directive 2008/52/EC and relates to certain aspects of mediation in civil and commercial matters, where one party may apply for a mediated settlement to be put into the terms of an order and the other party agrees (“the Mediation Directive”) The Directive came into force on the 20th May 2011 through the Cross-Border Mediation (EU Directive) Regulations 2011 No 1133. The rule is supported by PD 35A. Amongst other things, it contains provisions setting out the procedure for mediation, evidence to be disclosed or inspected, including serving the mediator, or for witnesses to be called. Any application for a consent order under rule 35.2 must be completed in English or accompanied by an English translation. The rule also requires that a respondent must give ‘explicit consent’ in relation to an application for a consent order in respect of a financial remedy. Rules 35.3 and 35.4 deal with the confidentiality of mediation evidence subject to certain exceptions. Where an application for disclosure and inspection is made in an excepted cases, rule 35.3 requires an application be made in accordance with Part 18.
3.36
Part 36: Transitional provisions
All previous rules of court (as set out in PD 36A para 1.2) are, as from 6th April 2011 revoked, as the Family Procedure Rules 2010 are a new procedural code. Although of largely historical interest only now, the 2010 rules apply, so far as is practicable, to all applications and appeals made, but not disposed of, before the
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FPR 2010 came into force. However, where this is not practicable, the old rules will continue to apply. The exception to this is that the overriding objective set out in Part 1 will apply come what may (Para 4.2 PD 36A). The detailed transitional provisions are contained in a supplementary practice direction (PD 36A), which sets out the circumstances where the old rules (FPR 1991) will normally apply and the circumstances where the new rules (FPR 2010) will apply. In addition to the provisions in relation to transitional arrangements set out in PD 26A, part 36 also contains provisions in relation to future pilot schemes. Where a step has been undertaken using forms or documentation under the old rules then, in the first instance, the case will proceed under the old rules. In cases where a new step is taken in any existing proceedings on or after 6 April 2011, it is to be taken under the FPR 2010. However, notwithstanding this, the court has discretion as to how FPR 2010 are to apply and may disapply certain parts of their provisions pursuant to its case management powers, although there is a general presumption that FPR 2010 will apply (PD 36A, paras2.1(a) and 4.4(2) - (4)). If an application is issued prior to 6 April 2011 but listed after that date, the presumption is that the application will be decided having regard to the FPR 2010, and where the first occasion on which existing proceedings are before a court after 6 April 2011 is a hearing of a substantive issue, the general presumption is that the hearing will be conducted according to the FPR 2010. An assessment of costs taking place after 6 April 2011 will be in accordance with FPR 2010, Part 28, but the presumption is that no costs for work undertaken prior to 6 April 2011 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 2011 will generally be considered in accordance with FPR 2010 (Para 4.5 PD 36A) It must also be observed that whilst the relating practice direction dealing with experts and assessors (PD 25A) does not apply to proceedings issued before 6 April 2011, the court has a discretion to apply the guidance either wholly or in part (PD 25A, para.2.2) Chapter 2 of PD 36A sets out a list of forms which will be rejected by the Court if submitted after 22 April 2014 to take account of the Family Justice Reforms. There is
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a saving provision in rule 4.6(3) in cases which are urgent but this will expire after a period of 6 months from that date. There is also a useful glossary at the end of FPR 2010 setting out as a guide the various meanings of certain legal expressions used throughout the rules such as ‘affidavit’, ‘stay’ ‘set aside’ and ‘without prejudice’. Rule 36.2 provides for the imposition of Pilot Schemes under the rules the most notable of which was Practice Direction 36C in relation to public law proceedings under Part 4 of the Children Act 1989.
3.37
Part 37: Applications and proceedings in relation to contempt of court
Part 37 is a new self-contained section dealing with applications and procedures in relation to contempt of Court which was incorporated within the Family Procedure Rules by the Family Procedure (Amendment No. 2) Rules 2014. It is supported by a Practice Direction PD 37A. The provisions under this Part are only concerned with procedure and sets out the detailed procedural requirements in respect of:
•
Committal for breach of a Judgment, Order or Undertaking to do or abstain from doing an act (Prohibitory and Mandatory provisions)
(Chapter 2)
•
Contempt in the face of the Court. (Chapter 3)
•
Committal for interference with the due administration of justice.
(Chapter 4)
•
Committal for making a false statement of truth. (Chapter 5)
•
Sequestration to enforce a Judgment, Order or Undertaking. (Chapter 6)
•
Penal, contempt and disciplinary provisions of the County Courts Act 1984.
(Chapter 8). Chapter 2 of the Rules (rules 37.4 to 37.11) deals with enforcement of a Judgment, Order or undertaking to do or abstain from doing an act. The provisions also apply to Undertakings given by a party in the same way that it applies to Judgments or Orders. The general rule is that unless the Court dispenses with service under Rule 37.8 a Judgment or Order may not be enforced under the provisions of 37.4 unless a copy of it has been served on the person required to do or not to do the act in question and, in addition, in the case of a Judgment or Order requiring a person to do an Act (a mandatory order): 268
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(a) The appropriate Judgment or Order has been served before the end of
time fixed for doing the act together with a copy of any Order fixing
that time;
(b) In cases where the time for doing the case has been varied by a
subsequent Order a copy of that subsequent Order has also been so
served; and
(c) Where the Judgment or Order has been made pursuant to an earlier
Judgment or Order requiring the act to be done, a copy of that earlier
Judgment or Order has also been served.
In cases where the person to be served is a company or other corporation then the requisite documentation must also be served on a Director or Officer of the company or corporation concerned before the end of the time fixed for doing the act in question. Rule 37.6 provides that such Judgment or Orders along with any Order or Agreement fixing or varying the time for doing the act must be served personally. As far as Undertakings are concerned Rule 37.7 provides that a copy of any document recording an Undertaking is to be delivered by the Court to the person who gave the Undertaking by:
(a) Handing it to the person before that person leaves the Court building;
(b) Posting a copy to that person at their residence or place of business
where this is known; or
(c) Posting a copy to that person’s Solicitor.
If delivery cannot be effected by any of the above methods then the Court will deliver a copy of the document to the party whose benefit the Undertaken was given on the basis that they must serve it personally on the person who gave the Undertaking as soon as practicable. In cases where the person referred to is a company or other corporation then a copy of the Judgment or Order must also be served on the Director or Officer of the company or corporation concerned. Rule 37.8 provides for the dispensation of personal service in certain circumstances although given the nature of these proceedings this will be aware and perhaps only suitable where they are evading service and another means of service is readily available. In cases where the Order or Judgment requires a person not to do an act, that is it is prohibitory in nature, then the Court may dispense with service of it if it is satisfied that
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the person has had notice of it by being present when the Judgment or Order was given or by being notified of its terms by telephone, email or otherwise. This may of course result in some interesting evidential arguments particularly where the focus is on the extent to which the individual concerned was aware of the precise provisions that it is alleged that they have breached. With regard to any other Judgment, dispensation of service can be given if the Court thinks it just to do so or, which will be the usual order, by making provision for service by an alternative method or at an alternative place. Rule 37.9 provides that an Order to do or not to do an act cannot be enforced unless there is displayed prominently on the front of it a warning to the person to whom the Order is addressed the consequences of disobedience namely contempt of Court punishable by imprisonment or sequestration of assets (See PD 37 para 1.1 as to the appropriate wording) Undertakings however may be enforced notwithstanding the Judgment or Order does not contain the requisite warning (rule 37.9(2)) However if a warning is given the appropriate wording is as set out in PD 37 para 2.1. Paragraph 2.2 of PD 37 also makes provision for the person who is giving the undertaking to make a statement to the effect that they understand the terms of the undertaking they are giving and the consequences of failure to comply with it the wording to which again is set out in the Practice Direction. Paragraph 2.3 provides that the statement need not be given to the court in person but may be endorsed on the court copy of the undertaking or filed in a separate document such as a letter. If this is the case then the court will need to be satisfied that it has in fact been given by the person making the undertaking. The failure to give such a statement may mean that the court refuses to accept such an undertaking or enforce its terms in the event of breach. Specific provision is also made in respect of the enforcement of an Order pursuant to Section 8 of the Children Act 1989, Special Guardianship Orders and an order prohibiting contact with a child pursuant to S 51A(2)(b) ACCA 2002 (rule 37.9(3)) In essence the court may, on an application to enforce any of these Orders, direct that the Order to be enforced is reissued and endorsed with a notice warning as to the consequences of disobedience for service as a prelude to further enforcement. Rule 37.10 sets out the procedural requirements with regard to an application for committal. The Part 18 procedure applies. 270
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The application notice must set out the basis on which the committal application is made out identifying separately and numerically each alleged act of contempt including, if known, the date of each of the alleged acts and be supported by an Affidavit containing the evidence relied upon. The application notice must contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing. A form of notice is annexed to Practice Direction 37A (paragraph 10.2(4)) The application and supporting evidence must be served personally although the Court may dispense with service if it is considered just to do so or alternatively make an Order in respect of service by an alternative method or at an alternative place. Due to the nature of such applications it is highly unlikely that service will be wholly dispensed with. Rule 37.11 applies where the application for committal is being made against a Solicitor for breach of an Undertaking given by the Solicitor in connection with Family Proceedings. Before making an application the Applicant must first obtain permission of the Court. The application for permission is undertaken pursuant to the Part 18 procedure and must be supported by an Affidavit setting out the name, description and address of the Respondent and the grounds on which the Committal Order is made. Such application for permission can be made without notice although in such circumstances the provisions of Rules 18.10 and 18.11 do not apply. Rule 37.11(7) provides that unless the Applicant makes a formal committal application within 14 days after permission has been granted such permission will automatically lapse thus preventing the threat of such a draconian sanction hanging over the head of a Solicitor for an indeterminate period of time with the consequential stress that this will no doubt incur. Chapter 3 consists solely of Rule 37.12 which deals with contempt in the face of the Court and in essence provides that where such contempt has taken place and the Court has power to commit for contempt then the Court can deal with it of its own initiative and give such Directions as it thinks fit for disposal. This is regulated by paragraph 3 of the accompanying Practice Direction and makes it plain that it will normally be appropriate for the court to defer consideration of the respondent’s actions and behaviour to allow them time to reflect on what has occurred.
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Paragraph 3.3 helpfully sets out in detail precisely what the Court should do in such circumstances and will no doubt be regarded as indispensable guidance to the judiciary particularly when faced with ever increasing numbers of litigants in person. If there is a risk of the appearance of bias, the judge should ask another judge to hear the committal application providing a written statement as evidence of what transpired. Chapter 4 (rules 37.13 – 37.15) deals with committal for interference with the due administration of justice. An application for committal under this provision may not be made without permission of the Court and the procedure for applying for such permission is set out in Rule 37.15. The application for permission must be made using the Part 18 procedure and be accompanied by a detailed statement of the grounds for making a committal application and an Affidavit setting out the facts and exhibiting all documents relied upon (again see the requirements of PD 37A para 10.2(4)) The application notice and accompanying documentation must be served personally on the Respondent unless the Court directs otherwise. Within 14 days of service the Respondent must file and serve an Acknowledgment of Service and may file and serve evidence in response. The Court will usually consider the application for permission at an oral hearing unless it considers such a hearing is not appropriate. If the Respondent intends to appear at the permission hearing then the Respondent must give 7 days’ notice in writing of their intention to do so to both the Court and the other party along with a written summary of the submissions which they intend to make. Where permission is granted the Court can give such directions as it thinks fit including transferring the proceedings to another Court or direct the application be listed before a Single Judge of a Divisional Court. Chapter 5 (rules 37.16 – 37.17) deals with committal applications in relation to making or causing to be made a false statement in a document verified by a statement of truth pursuant to Part 17 without an honest belief in its truth. The Applicant must again first obtain permission of the Court in accordance with Rule 37.17 or, in the alternative; the Court may direct the matter be referred to the Attorney General for consideration as whether or not to bring proceedings
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themselves for contempt. Where permission of the court is sought paragraph 4.2 of PD 37A sets out what the evidence in support of the application must contain. Where the court instigates the action itself reference must be had to paragraph 4.5. Chapter 6 (rules 37.18 – 37.26) deals with rules concerning applications for a Writ of sequestration to enforce a Judgment Order or Undertaking. Rule 37.19 provides that if a person required by Judgment or Order to do an act does not do it within the time fixed by the Judgment or Order or a person disobeys a Judgment or Order not to do an act then the Judgment or Order may be enforced by a Writ of Sequestration against the property of that person. If the person referred to is a company or corporation the Writ of Sequestration may, in addition, be issued against the property of any Director or other Officer of that property or corporation. Rule 37.20 provides that unless the Court dispenses with service, a Judgment or Order may not be enforced by such method unless a copy of it has been served on the person required to do or not to do the act in question and, in the case of a Judgment or Order requiring a person to do an act (a mandatory provision):
•
A copy of it must be served before the end of the time fixed for doing the
act together with a copy of any Order fixing the time;
•
Where the time for doing the act has been varied by a subsequent Order
a copy of that subsequent Order has also been served; and
Where the Judgment or Order has been made pursuant to an earlier
•
Judgment or Order requiring the act to be done, a copy of that earlier
Judgment or Order has also been served.
Again where the person referred to is a company or other corporation a copy of the Judgment or Order must also be served on a Director or Officer of the company or corporation before the end of the time fixed for undertaking the act. Rule 37.21 provides that any Orders or Agreements fixing or varying the time for doing the act must also be served personally. Insofar as Undertakings are concerned rule 37.22 provides that a copy of any document recording an Undertaking can be delivered by the Court to the person who gave the Undertaking by the following methods:
•
By handing it to that person before that person leaves the Court building.
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By posting a copy to that person at their residence or place of business
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•
By posting a copy to that person’s Solicitor.
If delivery cannot be effected by any of the above methods then the Court will deliver a copy of the document to the party for whose benefit the Undertaking was given and that party must then arrange to serve it personally on the person who gave the Undertaking as soon as practicable. Again where the person referred to is a company or other corporation, a copy of the Judgement or Order must also be served on a Director or Officer of that company. Rule 37.23 provides for dispensation of personal service. Again there is a difference between dispensation of service of an Order or Judgment requiring a person to do or not to do an act and any other Judgment or Order. In the former category the Court may dispense with service if it is satisfied the person has had notice of it by being present when the Judgment or Order was given or made or by being notified of its terms by email or otherwise. In the latter case the Court can dispense with service if the Court thinks it is just to do so or make an Order in respect of service by an alternative method or at an alternative place. Rule 37.24 provides that a Judgment or Order to do or not to do an act cannot be enforced by such method unless there is prominently displayed on the front of the Order a warning to the person required to do or not to do the act in question the consequences of disobedience to the Order namely contempt of Court punishable by imprisonment, fine or sequestration of assets. On the other hand an Undertaking to do or not do an act contained in a Judgment or Order may be enforced by such method notwithstanding the Judgment or Order itself incorporating the injunction does not contain such warning. An application for permission to issue a Writ of Sequestration must be made to a Single Judge of the Family Division in the High Court or, in the Family Court, to a Judge at High Court level. The application is made pursuant to the Part 18 procedure. The application notice must set out the full grounds on which the committal application is made and must identify, separately and numerically each alleged act of contempt including, if known, the date of each of the alleged acts and be supported by all evidence relied upon by way of Affidavit (see PD 37A para 10.2(4)) The application and supporting evidence must be served personally on the Respondent although the Court can dispense with service if it considers it just to do so or make an Order in respect of service by an alternative method or at an
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alternative place. Once an Order is made the Writ of Sequestration must be in Form No 67 (Rule 37.26). Chapter 7 (rules 37.27 – 37.31) sets out general rules regarding applications for committal and Writs of Sequestration. Rule 37.27(1) provides that a Court hearing such an application cannot hear from an Applicant in relation to any evidence other than as set out in the application notice or supporting evidence. It is clearly important therefore that the application notice and supporting evidence therefore is fully detailed and contains the full extent of the Applicant’s evidence in chief. Where the liberty of the subject is concerned the procedural requirements must be adhered to however note PD 37A para 13.2 which provides that the court may waive procedural defects if satisfied that no injustice has been caused to the respondent by such defects. The court may on the hearing date:
•
give case management directions with a view to hearing the committal
application at some future date; or
if the committal application is ready to be heard, proceed to hear it (para
•
12.3) In dealing with any committal application, the court will have regard to the need for the respondent to have details of the alleged acts of contempt and the opportunity to respond (para 12.4) The court will also have regard to the need for the respondent to be:
•
allowed a reasonable time for responding to the committal application
including, if necessary, preparing a defence;
made aware of the possible availability of criminal legal aid and how to
•
contact the Legal Aid Agency;
•
given the opportunity, if unrepresented, to obtain legal advice; and
•
if unable to understand English, allowed to make arrangements, seeking
the assistance of the court if necessary, for an interpreter to attend the
hearing. At the hearing the Respondent is entitled to give oral evidence and be cross examined irrespective of whether or not they have filed and served written evidence. With permission of the Court a Respondent can also call any other witness
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to give evidence irrespective of whether or not that witness has made an Affidavit or witness statement. It will be seen that due to the nature of the proceedings the rules afford considerable latitude to enable the Respondent to answer the allegations. The Court also has power to require or permit any person (other than the Respondent) to give oral evidence at the hearing. The Court can in addition give directions requiring the attendance for crossexamination purposes of a witness who has given written evidence. Thus a person who files written evidence will be a compellable witness. The general rule is that such applications will be heard and Judgment given in public although an application can be made for all of it or part of the proceedings to be heard in private if the following provisions apply:
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Publicity would defeat the object of the hearing;
•
It involves matters relating to national security;
•
It involves confidential information (including information relating to
personal financial matters) and publication would damage that
confidentiality;
•
A private hearing is necessary to protect the interests of any child or
protected party;
•
It is a hearing of an application made without notice and it would be
unjust to any Respondent for there to be a public hearing; or
The Court considers this to be necessary in the interests of justice.
•
If on hearing an application for committal the Court decides to make a Committal Order it must in Open Court state that name of the Respondent and, in general terms, the nature of the contempt of Court in respect of which the Committal Order is being made and the length of the period of the Committal Order. Where such Order is made in the absence of the Respondent the Court may on its own initiative fix a date and time when the Respondent should be brought before the Court. By rule 37.28 the Court can also order the execution of a Committal Order to be suspended for such period or upon such terms and conditions as the Court may specify. Once the Committal Order is made the consequential Order will be for the issue of a Warrant for Committal. Unless the Court directs otherwise a copy of the Committal Order must be served on the Respondent either before or at the time of execution of
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the warrant of committal or, where the Warrant of Committal has been signed by the Judge, the Committal Order may be served on the Respondent at any time within 36 hours after the execution of the Warrant. A Warrant of Committal cannot be enforced more than two years after the date on which the Warrant is issued without further Order of the Court. By rule 37.30 a person committed to prison for contempt of Court may apply to Court to purge their contempt. The application must be in writing and attested by the Governor of the prison where they are held (or any other Officer of the prison not below the rank of Principal Officer) and be served upon the person at whose instance the Warrant of Committal was issued at least one day before the application is made. In cases where the committal was made in the Family Court and the Order did not direct that any application for discharge must be made to a Judge or was made by a District Judge pursuant to Section 118 of the County Courts Act 1984 then the application for discharge may be made to a District Judge. If the Committal Order was made in the High Court then the application may be made to a Single Judge of the Family Division. Rule 37.31 provides for the discharge of a person in custody where a Writ of Sequestration has been issued. This provides that where such Writ has been issued to enforce a Judgment or Order, the property is in the custody or power of the Respondent and the Respondent has been committed for failing to deliver up any property or deposit it in Court or otherwise and the commissioners appointed by the Writ to take possession of the property accordingly do so, then the Court may discharge the Respondent and give such Directions for dealing with the property as it thinks fit. Chapter 8 (rules 37.32 to 37.38) deals with penal and disciplinary provisions under the County Courts Act 1984. Amongst other things it makes provision for where a person has committed an offence:
•
Under Section 14 of the Act by assaulting an Officer of the Court acting in
the execution of the Officer’s duties;
•
Under Section 92 of the Act by rescuing or attempting to rescue any
goods seized in execution; and
•
Under Section 118 of the Act by wilfully insulting a Judge, Juror or any
Officer of the Court or by wilfully interrupting the proceedings of the Family
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Court or otherwise misbehaving in Court.
PD 37A paragraph 8.1 confirms that the criminal burden of proof applies. All evidence must be in the form of an affidavit as opposed to a statement verified by a statement of truth (para 11.1) and, unless the court directs otherwise, the hearing date of the committal application must not be less than 14 days after service of the application notice on the respondent (para 12.2) Once started a committal application can only be discontinued with permission of the Court (para 13.3) although there are provisions as to strike out on a similar basis to that of rule 4.4 (para 13.1)
4 Conclusion The introduction of the Family Procedure Rules 2010 represented the most significant development in procedure in Family Law for 20 years. The rules come in one cohesive set which are helpful to all those who practise in the field of family law. The overriding objective as contained in FPR 2010, rule 1 emphasises the importance of proportionality which all cases before the court must have regard to. It refers to the rules as being a ‘new’ procedural code. One consequence of this is that previously reported decisions on procedure may now need to be reconsidered in light of the new regime. It is the author’s belief that given the fact that the FPR 2010 borrows extensively from their Civil Rules counterparts that, where relevant, guidance may be had from case law from the Civil jurisdiction but with the caveat that the overriding objective within family proceedings has, as an additional requirement, the necessity of considering any welfare issues involved. The overriding objective of course applies to all family proceedings which includes matrimonial and civil partnership proceedings as well as those under Parts IV and IVA of the Family Law Act 1996. One should therefore heed warnings from case law emanating from the CPR equivalent:“…the parties are required to help the court to further the over-riding objective, and the over-riding objective is not furthered by arid squabbles about technicalities………” (Hannigan v Hannigan (2000) 2 FCR 650) Part 3 emphasises the potential usage of ADR and mediation before, upon issue and at every stage of the proceedings. 278
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This applies to not just children’s cases and is a relevant consideration not only at the first hearing, but also on an ongoing basis throughout the life of the case and both before and upon issue of proceedings. It is envisaged that courts may well exercise their powers to adjourn for the purposes of ADR more readily than previously, particularly if applications have been issued which are non-protocol compliant. Many of the revised application forms (e.g. Forms A, A1 and C100) themselves require details as to what steps a party has, or has not, taken to avail themselves of ADR and will call for an explanation if such avenues have not been explored. Having said that, although there is an expectation that parties will have attended a mediator before coming to court, the protocol does not take away a party’s right to issue an application notwithstanding the absence of Form FM1 signed by a mediator. Although it is envisaged that court staff may advise parties of the protocol and it is expected that a Form FM1 will be filed, if the party insists on pressing ahead nonetheless without the form then the applicant will be allowed to issue proceedings nonetheless – the court cannot prohibit it. However, the fact that no form is filed and the protocol has not been complied with will no doubt be raised with the parties by the judge at the first hearing and where appropriate, the following outcomes are possible:
•
proceedings stayed to enable a referral to be made for a mediation
information and assessment meeting;
non-compliance being considered as a matter of conduct on the issue of
•
costs; or
•
the imposition of a sanction.
Part 4 also has the potential to have a dramatic impact, not least in the fact that telephone hearings are now made possible in all tiers of court. For applications and directions appointments not requiring the attendance of the parties, this may prove a welcome option. However, given the requirements in family cases for parties to be present (certainly in children and financial applications) anecdotal evidence suggests that this is not having the same level of take-up as in civil proceedings. There may, however, be increased take-up of the court making orders of its own initiative in light of the court’s expansive case management powers. The court’s powers of strike-out also bear comment as well as the ability to make civil restraint orders and corresponding applications for relief from sanctions which, due to the increasing number of litigants in person and the emotions running through the veins
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of family cases, could be a fertile ground for developing case law, and even more so than within the civil jurisdiction. As for take-up of service by email under Part 6, it is possible the profession is likely to be slow to respond to this bearing in mind that service by fax itself is often not entertained as readily as perhaps it should be. The provisions as to setting aside judgments contained in Part 27 may also see some fruitful litigation for the same reasons as applications for relief from sanctions as provided for in Part 4. The extensive Rule 25 and its accompanying Practice Directions make essential reading for all those wishing to instruct an expert within the context of proceedings and must be strictly adhered to. In conclusion, the advent of one comprehensive set of rules as a ‘catch all’ provision is a welcome development, as both litigants and practitioners alike will be assisted in knowing where they need to look to find what they need. On a practical level, encouragement to parties to engage in NCDR (previously ADR), 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 will all, it is hoped, have a positive impact on family litigation in the future. Like their CPR equivalents, the FPR 2010 will be a continual work in progress with regular updates and amendments. As for future developments, one can envisage the Family rules adopting a tougher stance on relief from sanctions where there are non compliances with the rules, practice directions and orders as with the new and revised CPR 3.9 and the possible imposition of Costs Management Orders in line with those carried into effect by the Jackson reforms (CPR 3.12 – 3.18)
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Family mediation 6 October 2011
Contents
•
1. Introduction
o
1.1 Who should read this practice note
o
1.2 What is the issue?
o
1.3 Professional conduct
o 1.4 Status o 1.5 Terminology
•
2. SRA principles
•
3. Practice Direction 3A
o
4. Annex A: pre-application protocol
•
o
3.1 Purpose of the practice direction 4.1 Compliance with the protocol
o 4.2 Funding
•
5. Annex B: relevant family proceedings
•
6. Annex C: exemptions
•
7. Form FM1
•
8. Using family mediators before applying to the court
•
9. Family Procedure Rules
•
10. Private law programme
•
11. More information
o
11.1 Practice advice
o 11.2 References o 11.3 Other o 11.4 Acknowledgements
1. Introduction 1.1 Who should read this practice note? Family law solicitors who have clients wishing to make an application to the court in relevant family proceedings.
1.2 What is the issue? Practice Direction 3A and its accompanying pre-application protocol for family Mediation Information Assessment Meetings (MIAMs) were introduced on 6 April 2011. Under the protocol, all potential applicants, before making their application for a court order in relevant family proceedings will be expected, unless exempted, to have considered alternative means of resolving their disputes. Respondents will also be expected to attend a MIAM to consider dispute resolution options, if invited by a mediator to do so. 282
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The protocol is designed to apply to privately paying litigants and litigants in person and is similar to the procedures for publicly funded parties contained in the Legal Services Commission?s Funding Code and its associated procedures.
1.3 Professional conduct The following sections of the SRA Code are relevant to this issue:
•
Principles 1 to 10 in SRA Handbook
1.4 Status Practice notes are issued by the Law Society as a professional body for the benefit of its members. They represent the Law Society’s view of good practice in a particular area. They are not intended to be the only standard, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. Solicitors are not required to follow them. They do not constitute legal advice and, while care has been taken to ensure that they are accurate, up-to-date and useful, the Law Society will not accept any legal liability in relation to them. For queries or comments on this practice note contact the Law Society’s Practice Advice Service.
1.5 Terminology Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook. Should
•
Outside of a regulatory context, good practice for most situations in the
Law Society’s view.
In the case of the SRA Handbook, an indicative behaviour or other non
•
mandatory provision (such as may be set out in notes or guidance).
These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.
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May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies. Must- A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook. SRA Code - SRA Code of Conduct 2011 2007 Code - Solicitors’ Code of Conduct 2007 OFR - Outcomes-focused regulation SRA - Solicitors Regulation Authority outcome - outcome IB -indicative behaviour
2. SRA principles There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook. When thinking about how to meet the outcomes in principles 1 to 10 in the Code/ Handbook, you must consider the principles which apply across the Handbook including the Code. You should always bear in mind what the ten principles are and use them as your starting point when implementing the outcomes.
3. Practice Direction 3A Practice Direction 3A applies where a person is considering applying for a court order in relevant family proceedings (see relevant proceedings in section 4). The practice direction is supplemented by three annexes:
•
Annex A: The pre-application protocol (the protocol) sets out the steps
that the court will normally expect an applicant to follow before an
application is made to the court;
•
Annex B: Defining relevant family proceedings;
•
Annex C: Exemptions from attending a MIAM.
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3.1 Purpose of the practice direction The purpose of this practice direction and accompanying protocol is to: (a) supplement the court’s powers in part 3 of the Family Procedure Rules 2010 to encourage and facilitate the use of alternative dispute resolution; (b) set out good practice to be followed by any person who is considering making an application to court for an order in relevant family proceedings; and (c) ensure, as far as possible, that all parties have considered mediation as an alternative means of resolving their disputes. The Law Society’s Family Law Protocol 2010 requires a solicitor at a first meeting to consider with their clients alternative dispute resolution options and this practice is now supported through the practice direction and its pre-application protocol.
4. Annex A: pre-application protocol Under the protocol all potential applicants for a court order in relevant family proceedings will be expected, before making their application to the court, to have followed the steps set out in the protocol. The protocol requires a potential applicant, except in certain specified circumstances, to consider with a mediator whether the dispute can be resolved through alternative dispute resolution processes. The court will expect all applicants to have complied with the protocol before commencing proceedings, subject to the exemptions set in Annex C (see Section 4), and will also expect respondents to have attended a MIAM, if invited to do so. If proceedings are issued, the court will wish to know at the first hearing whether mediation has been considered by all parties. The Family Mediation Information and Assessment Form FM1 (Form FM1) is to be filed with any application made to the court, see Section 6 below for further details. In considering the conduct of any relevant family proceedings, the court will take into account any failure to comply with the protocol and may refer parties to a MIAM with a mediator before proceedings continue further.
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4.1 Compliance with the protocol To comply with the protocol before an application is made to the court, you should be aware of the following:
•
You or your client should contact a family mediator to arrange for your
client to attend a MIAM about family mediation and other forms of
alternative dispute resolution
o
Your client is not expected to attend a MIAM if they are excluded
from doing so, see Section 5 below for further information
o
See Section 7 below for information on how to find a family mediator
•
You or your client should provide the mediator with contact details for the
other party or parties (respondents) to the dispute, so that the mediator
can contact these parties to discuss their willingness and availability to
attend a MIAM
Your client should then attend a MIAM arranged by the mediator. If the
•
parties are willing to attend together, the meeting may be conducted
jointly, but where necessary separate meetings may be held. If the
parties do not attend a joint meeting, the mediator will invite the
applicant and the respondent to a separate meeting unless they fall
within an exemption category as outlined at Section 5 below
At the MIAM the mediator should consider with the parties whether public
•
funding may be available to meet the cost of the meeting and any
subsequent mediation
•
If your client makes an application to the court in respect of the dispute, a
completed Form FM1 should be filed at the same time confirming
attendance at the MIAM or giving reasons for not attending. For more
information about Form FM1 see Section 6 below.
4.2 Funding You should ensure that your client is aware that the Legal Services Commission (LSC) is only able to remunerate for MIAMs and/or mediation services for publicly funded clients where the MIAMs and/or mediation are undertaken by LSC-contracted mediators and mediation services who are eligible to provide these services. Where parties are not eligible or do not wish to seek public funding, any charge made by the mediator for the meeting will be the responsibility of the attending parties in accordance with any agreement made with the mediator.
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Information as to which mediators and services are eligible to provide publicly funded meetings can be found at:
•
local family courts
•
the Community Legal Advice helpline - CLA Direct (0845 345 4345)
• Community Legal Advice website
5. Annex B: relevant family proceedings Relevant family proceedings are defined as: 1) Private law proceedings relating to children, except:
•
proceedings for an enforcement order, a financial compensation order or
order under paragraph 9 or part 2 of Schedule A1 to the Children Act 1989
any other proceedings for enforcement of an order made in private law
•
proceedings, or
•
where emergency proceedings have been brought in respect of the same child(ren) and have not been determined.
See Family Procedure Rule 12.2 for the definition of ‘private law proceedings’ and ‘emergency proceedings’. 2) Proceedings for a financial remedy, except:
•
proceedings for an avoidance of disposition order or an order preventing
a disposition
•
proceedings for enforcement of any order made in financial remedy
proceedings. See Family Procedure Rule 2.3(1) for the definition of ‘financial remedy’, and Rule 9.3(1) for the definition of ‘avoidance of disposition order’ and ‘order preventing a disposition’.
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6. Annex C: exemptions Your client is not expected to attend a MIAM when making an application to the court in relevant family proceedings if any of the listed circumstances applies:
Part 2 of the FM1 Form The mediator is satisfied that mediation is not suitable because:
•
another party to the dispute is unwilling to attend a MIAM and consider
mediation, or
•
the case is not suitable for a MIAM, or
•
a determination by a mediator within the previous four months has been
made that the case is not suitable for a MIAM or for mediation.
Part 3 of the FM1 Form
•
Any party has, to your client?s knowledge, made an allegation
of domestic violence against another party and this has resulted in a
police investigation or the issuing of civil proceedings for the protection of
any party within the last 12 months.
The dispute concerns financial issues and your client or another party is
•
bankrupt.
•
The parties are in agreement and there is no dispute to mediate.
•
The whereabouts of the other party are unknown to your client.
•
The prospective application is for an order in relevant family proceedings
which are already in existence and are continuing.
The prospective application is to be made without notice to the
•
other party.
•
The prospective application is urgent, meaning: o
there is a real risk to the life, liberty or physical safety of your client or
his or her family or his or her home; or
o
any delay caused by attending a MIAM would cause a risk of
significant harm to a child, a significant risk of a miscarriage of justice,
unreasonable hardship to your client or irretrievable problems in
dealing with the dispute, such as an irretrievable loss of significant
evidence.
•
There is current social services involvement as a result of child protection concerns in respect of any child who would be the subject of the
prospective application.
•
A child would be party to the prospective application by virtue of Family Procedure Rule 12.3(1).
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•
You or your client contacts three mediators within 15 miles of your client?s
home and none is able to conduct a MIAM within 15 working days of the
date of contact.
Part 4 of the FM1 Form Any other reason not specified in parts 2 or 3 of the FM1 Form and which should be set out in the form.
7. Form FM1 The new Family Mediation Information and Assessment Form FM1 is to be used in connection with family proceedings to which the Practice Direction 3A applies. When issuing proceedings the form should be completed in accordance with the protocol and filed with any application made to the court. The form must be completed and signed by the mediator, and counter-signed by you or your client, where either:
•
Your client has attended a MIAM (part 1 of the form), or
•
your client has not attended a MIAM (Part 2 of the form) and
o
the mediator is satisfied that mediation is not suitable because another party to the dispute is unwilling to attend a MIAM and
consider mediation, or
o
the mediator determines the case is not suitable for a MIAM, or
o
a mediator has made a determination within the previous four months
that the case is not suitable for a MIAM or for mediation.
In all other circumstances, the form must be completed and signed by you or your client. A copy of the FM1 form is available from the following sources:
•
magistrates’ courts, county courts or the High Court
• Direct.gov.uk • the HMCS form finder
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8. Using family mediators before applying to the court Before your client makes an application to the court in relevant family proceedings, unless exempted, you or your client should contact a family mediator to arrange for your client to attend a MIAM. The protocol does not provide a definition of family mediator, however you should ensure that any referral you make is to an appropriately qualified and experienced family mediator. You should advise and assist clients in selecting the most suitable family mediator for the dispute in question, by reference to some or all of the following aspects: • training
•
areas of expertise
•
discipline(s) of origin
•
appreciation of relevant issues of ethnicity and culture
•
charging rates
•
geographical suitability
•
any other relevant characteristics.
Information on how to find a family mediator may be obtained from:
•
local family courts
•
the Community Legal Advice Helpline - CLA Direct (0845 345 4345)
• Directgov website Details of the Law Society Family Mediation Panel and how to access its practitioner members can be found on the Law Society’s website. There are also other organisations that offer family mediation training and accreditation, which can be located through the Family Mediation Council website.
9. Family Procedure Rules The protocol is a supplement to part 3 of the Family Procedure Rules 2010, which came into force on 6 April 2011. Terms used in this practice direction and its accompanying protocol have the same meaning as those used in the Family Procedure Rules. See the Family Procedure Rules 2010 for more information.
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10. Private law programme In private law children proceedings, the court is actively involved in assisting parties to resolve their disputes through alternative means. The pre-application protocol does not affect the operation of the private law programme now set out in Practice Direction 12B. However, this does not mean that parties in private law children proceedings do not have to comply with the protocol and they should use Form FM1 when applying to the court. Practice Direction 12B provides for a first hearing dispute resolution appointment to discuss the nature of the dispute and whether it could be resolved through mediation or other alternative means. See private law programme (PDF) for further information.
11. More information 11.1 Practice advice The Law Society provides support to solicitors on a wide range of areas of legal practice. The service is staffed by solicitors and can be contacted on 0870 606 2522 from 09:00 to 17:00 on weekdays.
11.2 References • Practice Direction 3A and pre-application protocol • Family Procedure Rules 2010 • Children Act 1989 • Private law programme (PDF)
11.3 Other Solicitors Regulation Authority’s Professional Ethics Helpline for advice on conduct issues.
11.4 Acknowledgements The Law Society wishes to thank members of the Family Law Committee for their assistance in drafting this practice note.
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Experts Experts in the family courts: in the family courts: guide and sample guide andquestions sample questions
Experts in the family courts: guide and sample questions
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Law Society 2013 ©
© Stephen Parker 2014
Introduction New Rules on the use of experts in family proceedings along with new Practice Directions came into force on 31 January 2013. The Rules provide that no party may call an expert or put in evidence an expert’s report in any family proceedings without the court’s permission; and that in children proceedings the court’s permission is required before an expert may be instructed, and before a child may be medically or psychiatrically examined or otherwise assessed for the purpose of obtaining expert evidence for use in the proceedings. In the light of the new Rules and Practice Direction, the Law Society has drawn up these templates to assist practitioners who instruct experts in family law proceedings:
•
letters of instruction
•
pre-proceedings letters of instruction, for local authority use
•
preliminary enquiries of an expert
•
terms and conditions to accompany an instruction
•
a guide to types of expert and sample questions
They can be found at: www.lawsociety.org.uk under Advice.
This document In deciding whether to give permission for expert evidence to be obtained to help the court resolve the case justly, the court will take account of a number of factors including the issues to which the expert evidence would relate and the questions which the court would require the expert to answer. This document aims to provide guidance on the types of expert and the kinds of questions that it may be helpful to ask with the purpose of helping the court reach a decision on the issue which is before it. Before instructing an expert, it is essential that the instructing solicitor is satisfied with the expert’s qualifications, relevant experience and post qualification training. Medical practitioners will be registered with the General Medical Council (www.gmc-uk.org) and specialists will be a member of the relevant Royal College – website links are provided in this guide.
Disclaimer This is intended as a guide to be adapted or modified for the facts of a particular situation. Whilst all reasonable care has been taken in the preparation of this guide, the Law Society cannot accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of relying upon its contents.
Clinical Psychologists Clinical psychologists work with people with mental or physical health problems which might include anxiety and depression, mental illness, adjustment to physical illness, neurological disorders, addictive behaviours, childhood behaviour disorders, personal and family relationships. 293
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Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA
Chronic Pain Expert Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent neck, back, neuropathic or Complex Regional Pain Syndrome (CRPS) especially following personal and occupational injuries. He also has wide experience in Medical Negligence claims.
Listed on the UK Register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses and Expert Witness Institute. Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert. He covers Manchester, Liverpool, Leeds, Birmingham and London. Other locations and Domiciliary visits can be arranged.
T : 01625 523355 M : 07885 913912 295
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Clinical psychologists can advise on matters such as:
•
Parental assessments
•
Residence and contact
•
Likelihood of recovery from psychological disorders
•
Assessment of drug and alcohol dependency
For more information on clinical psychologists, see www.bps.org.uk
Sample questions
1.
Please carry out a full cognitive assessment of XXX and advise on his/her
overall level of functioning.
2.
Please advise as to how information should be given to XXX, taking into
account the findings of his/her cognitive assessment.
3.
Please assess XXX’s likelihood of recovery from [psychological disorder].
4.
Please explain the steps that XXX should take in order to recover from
[psychological disorder/drug or alcohol addiction].
5.
Please assess how likely it is that XXX will be able to perform his/her parenting duties following treatment for [psychological disorder/drug and
alcohol abuse].
Forensic Psychologists Forensic psychologists specialise in the psychology of offending behaviour. They carry out psychological evaluations, write reports setting out their findings and attend court to give expert testimony. Forensic psychologists will have experience in writing reports for and attending court. A forensic psychologist can be trained in clinical, social, organisational or any other branch of psychology. Issues on which forensic psychologists can advise include:
•
Psychological assessments of parental fitness
•
Family relationships and functioning
•
Residence and contact
•
Domestic violence
For more information on forensic psychologists, see www.bps.org.uk
Sample questions
1.
Please assess XXX’s understanding, insight and acknowledgement of
[specific harm/behaviour].
2.
Please assess XXX’s parental capacity to keep the children safe from harm both in the past and in the future.
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3.
Please assess XXX’s parental ability to provide appropriate boundaries
and supervision around the children, including sexual matters.
Please assess XXX’s insight into [specific harm/behaviour] and the impact
4.
that that has had upon the children.
Please advise on whether XXX can provide appropriate levels of care
5.
for all their children, and, if not, please give an indication as whether XXX
could reasonably provide care for one or more children separately on a
long term basis.
Please assess whether XXX is able to prioritise the needs of his/her children
6.
and whether he/she will be able to provide for their current and future
needs.
7.
Please assess whether XXX is likely to refrain from domestic violence within their relationship in future.
CHILD & ADOLESCENT PSYCHOLOGIST FAMILY. EDUCATIONAL. EXPERT WITNESS. Graham Rogers is a Consultant Psychologist. In a developing practice, he has been able to access the services of various consultants, including family specialist, neuro-psychologists, mental health specialists, and those with wide ranging expertise, able to address the needs of clients. His own work as an expert witness has taken him to The High Court, The Central Criminal Court, as well as to high profile cases. His particular expertise is primarily in relation to adolescents, younger adults, and those with learning disabilities, involved in a variety of ‘criminal situations,’ as well as working with complex family cases.
In the area of family work, Graham introduced his first associate, Julia, offering 20 years experience, who began her training at the Maudsley Hospital, before ultimately heading a multidisciplinary team within CAMHS. His second associate, Anne, a special needs consultant for the past 13 years, works within the area of education, able to analyse and assess the educational needs and decisions related to children, with over 20 years experience as a teacher. Then there is Mary, and expert in those with complex learning disabilities, Autism and Asperger’s Syndrome, working across family and criminal cases. Since then, the range of experts and specialists available has developed.
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Telephone: 01279 301676 Mobile: 07952 170627 E-mail:
[email protected]
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Child Psychologists Child psychologists specialise in working with children up to the age of 18. Child psychologists work with children in a variety of settings including family, school and residential settings. Often they then go on to develop a particular area of practice or expertise for example, clinical child psychology or educational child psychology. Child psychologists can advise on matters such as:
•
Family relationships and functioning
•
Domestic violence
•
Contact and residence
•
Sexual or other emotional abuse
For more information on child psychologists, see www.bps.org.uk
Sample questions
1.
Please undertake a psychological assessment of the child focusing
on his/her cognitive functioning, intellectual, educational, emotional,
social and behavioural development and comment on any matters of
concern.
2.
Please comment on the child’s level of understanding of their situation.
3.
Please comment upon any harm which the child may have suffered
in respect of their psychological, intellectual, educational, emotional,
social and behavioural development and assess what the cause of such
harm may be.
Please assess the child’s understanding of domestic violence, and what
4.
the effect of witnessing such violence has had on him/her.
Please comment on the child’s attachments to the father/mother, to
5.
[other family member] and the children’s attachment to each other [if applicable].
6.
Please comment on the quality of the relationship between child and
parent.
7.
Please assess the sexualised behaviour of the child. Please advise on any work which may be required to resolve issues arising out of their sexualised
behaviour.
8.
Please advise on the most appropriate level of contact between the child
and the parents.
In the event that the children are to be separated, please advise on the
9.
appropriate level of sibling contact.
10. Please advise on the support services which should be put in place to
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Psychiatrists (drug and alcohol abuse) Drug and alcohol psychiatrists are concerned with the assessment and treatment of people with complex medical and social needs arising out of addiction to drugs, including, over the counter medication, solvents or alcohol. A drug and alcohol psychiatrist’s knowledge covers all aspects of addiction including the effect of addiction on the family. Drug and alcohol psychiatrists are particularly useful in providing assessments of parenting abilities in light of substance abuse, the likelihood of recovery and the possible effects that substance abuse may have on children. Issues on which drug and alcohol psychiatrists can advise include:
•
Parenting and risk assessments
•
Family relationships and functioning
•
Residence and contact issues
•
Assessment of drug and alcohol dependency
For more information on psychiatrists, see www.rcpsych.ac.uk
Sample questions
1.
In your opinion, is the parent able to sustain an alcohol/drug free lifestyle
over the long term?
In your opinion, is the parent likely to be able to control her alcohol and/or
2.
drug use to provide appropriate care for XXX?
Please assess the parent’s attitude in response to the local authority’s
3.
concerns and explore with them whether they accept those concerns
and understand why they have been raised.
Please assess whether XXX will be at risk if he/she were to return to the
4.
care of the parent.
Please assess whether the parent has any other form of coping strategy
5.
other than by abuse of alcohol or drugs.
Please assess whether the parent can work cooperatively with relevant
6.
professionals.
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Child and Adolescent Psychiatrists Child and adolescent psychiatrists undertake the diagnosis, treatment and management of psychiatric disorders from infancy up to the age of 18. The main difference between a child psychologist and a child psychiatrist is that treatment provided by psychiatrist may be accompanied by the use of medication. Issues on which child and adolescent psychiatrists can advise include:
•
Assessment of family relationships and functioning
•
Children’s psychiatric conditions
For more information on child and adolescent psychiatrists, see www.rcpsych.ac.uk
Sample questions:
1.
Do you consider XXX to be suffering from any psychological or psychiatric
condition? 2. Does XXX have - whether in his / her history or presentation - a mental
illness / disorder (including substance abuse) or other psychological or
emotional difficulty and, if so, what is the diagnosis?
3.
If the answer to the above is yes, are there any features of either the
mental illness or psychological / emotional difficulty or personality disorder
which could be associated with risk to others, based on the available
evidence base (whether published studies or evidence from clinical
experience)?
4.
What are the factors which would explain his / her difficulties, if any (taking
into account any available evidence base or other clinical experience)?
Specifically is XXX suffering from or has XXX suffered in the past from [eg
5.
depression or post natal depression]? If so please set out any relevant
history giving detail of past and present treatment.
6. If XXX is suffering from any psychological or psychiatric condition, please
comment on the impact of this on their parenting abilities?
How do any / all of the above (and their current treatment if applicable)
7.
affect his / her functioning, including interpersonal relationships?
If you consider XXX to be suffering from any psychological or psychiatric
8.
condition, can you indicate what treatment, therapy or support might be
indicated? What is the likely duration of such treatment?
Can you provide any information about local resources from which
9.
treatment or other support could be sought?
10. Please advise as to the prognosis for recovery or relapse and what effect
relapse would have on XXX’s ability to parent.
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Adult psychiatrists Adult psychiatrists diagnose and treat individuals over the age of 18 over a wide range of psychiatric disorders. Within adult psychiatry there are other areas of specialisation, including rehabilitation (or recovery) psychiatry, addictions, eating disorders and perinatal psychiatry. The main difference between a psychologist and a psychiatrist is that treatment provided by psychiatrists may be accompanied by the use of medication. Adult psychiatrists are particularly useful in providing assessments of how psychiatric disorders will affect an individual’s abilities to parent, the effect this will have on the child and the long term prognosis for the adult. Issues on which adult psychiatrists can advise include:
•
Parenting and risk assessments
•
Psychological assessment of parental fitness
•
Family relationships and functioning assessment
•
Residence and contact
For more information on adult psychiatrists, see www.rcpsych.ac.uk
Sample questions
1.
Do you consider XXX to be suffering from any psychological or psychiatric
condition?
2.
Does XXX have - whether in his / her history or presentation - a mental
illness / disorder (including substance abuse) or other psychological or
emotional difficulty and, if so, what is the diagnosis?
3.
If the answer to the above is yes, are there any features of either the
mental illness or psychological/emotional difficulty or personality disorder
which could be associated with risk to others, based on the available
evidence base (whether published studies or evidence from clinical
experience)?
4.
What are the factors which would explain his/her difficulties, if any (taking
into account any available evidence base or other clinical experience)?
Specifically is XXX suffering from or have they suffered in the past from [eg
5.
depression or post natal depression]? If so please set out any relevant
history giving detail of past and present treatment.
If you consider XXX to be suffering from any psychological or psychiatric
6.
condition can you comment on the impact of this on their parenting
abilities either currently or in the past?
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7.
How do any/all of the above (and their current treatment if applicable)
affect his/ her functioning, including interpersonal relationships?
If you consider XXX to be suffering from any psychological or psychiatric
8.
condition can you indicate what treatment, therapy or support might be
indicated? What is the likely duration of such treatment?
9.
What is the capacity of XXX to participate in therapy?
10. Can you provide any information about local resources from which
11. If possible please advise as to the prognosis for recovery or relapse and
treatment could be sought? what effect relapse would have on XXX’s ability to parent.
12. Are you able to indicate the prognosis for, timescales for achieving and
likely durability of, change?
13. What other factors might indicate positive change?
14. Does the parent’s/adult’s history or presentation indicate any features of
personality disorder?
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Radiologists Radiologists are medical specialists who employ the use of imaging to both diagnose and treat disease visualised within the human body. Radiologists are particularly useful in providing information on the causation of injuries in children and the likelihood of abuse. Radiologists can advise on:
•
Domestic violence
•
Assessment of injuries/causation
For more information on radiologists, see www.rcr.ac.uk
Sample questions:
1.
What is seen on radiological/CT/MRI examination?
2.
What significance should be placed on this?
3.
What injury (ies) did the child suffer? Is there any organic cause or other
explanation for what is seen?
If injury was suffered, what was the cause of injury, its mechanism and
4.
likely timing?
5.
What was the clinical course of the child’s presentation and how does this
correspond with the appearances on the X-ray/CT/MRI scans?
6.
The parents have described an incident as follows…… Could this
account for any injuries identified?
7.
Are the copies of the X rays of sufficiently good quality on which to base
any conclusion about the timing of the [injury] and, if not, can anything
be done to improve them?
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Ophthalmologists Ophthalmologists are surgical and medical specialists who deal with the anatomy, physiology and diseases of the eye. Ophthalmologists are particularly useful to provide information on the causation of injuries in children and the likelihood of abuse. Issues on which ophthalmologists can advise on include:
•
Domestic violence
For more information on ophthalmologists, see www.rcophth.ac.uk
Sample questions
1.
Has the child sustained any ophthalmologic injury?
2.
Please comment as to the likely cause and timing of any injury sustained
by the child.
Can you comment specifically on whether both retinal haemorrhages
3.
occurred at the same time and whether they occurred at the same time
as the haematomas identified by expert Y?
4.
Can you comment on the difficulty or ease with which it is possible to date
retinal injuries and the factors which make it difficult or easy to do so in the
case of this child’s injuries?
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Independent Social Workers Independent social workers are accredited social workers who have a minimum of between five to ten years post qualifying experience. They practise as freelance experts. Independent social workers are particularly useful in providing a perspective on the overall functioning of the family unit, the abilities of the parents and the behaviour of the child. Issues on which independent social workers can advise include:
•
Parenting and risk assessments in child care proceedings
•
Family relationships and functioning assessment
•
Domestic violence
•
Residence and contact
•
Assessment of children with emotional and behavioural difficulties
For more information on independent social workers, see www.basw.co.uk
Sample questions
1.
Please comment on the relationships within the family between
XXX and XXX.
2.
Please assess the understanding, insight and acknowledgement of XXX, in
respect of the [specific behaviour/harm] which has occurred in this family.
Please provide an opinion as to whether there are any issues in respect of
3.
failure to protect any of the children.
Please provide an opinion as to whether XXX can care adequately for all
4.
the children bearing in mind [specific circumstances]
In the event that your opinion is that XXX cannot provide care for all their
5.
children, please give a likely indication as whether XXX could reasonably
provide care for each child separately, on a long term basis.
Please assess with XXX whether they understand and accept the local
6.
authority’s concerns in relation to the care of their children.
Please assess what assistance should be offered to XXX from the local
7.
authority should the children be placed in his/her care.
Please comment on the nature of the sibling relationships and the benefits
8.
and disadvantages of individual or joint placements.
If removed from parental care, do the individual needs of the children
9.
outweigh the need for placement together?
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Paediatricians Paediatricians deal with the care of infants, children and adolescents and a broad range of medical problems from the acute, for example meningitis, to chronic diseases such as childhood diabetes. Paediatricians may work in community-based services, for example to support children with disabilities. Paediatricians are able to take a holistic view of the family unit and deal with the growth, development and the health of children, from birth to adolescence. They are able to advise the court on a range of issues from the general wellbeing of the child to the causation of specific conditions and diseases. Issues on which paediatricians can advise include:
•
Parenting and risk assessments in child care proceedings
•
Family relationships and functioning assessment
•
Domestic violence
•
Residence and contact
For more information on paediatricians, see www.rcpch.ac.uk
Sample questions
1.
Has the child sustained any injury or harm?
2.
Please comment as to the likely cause, mechanism or timing of any injury
or harm sustained by the child.
Please comment on the difficulty or ease with which it is possible to date
3.
the injury or harm in this case.
Please advise as to whether there has been a parental failure to protect
4.
the child.
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General practitioners General practitioners provide a wide spectrum of care within the local community: dealing with problems that often combine physical, psychological and social elements. General practitioners are able to advise on the wellbeing of the child, the functioning of the family unit and the causation of conditions and diseases. Issues on which GPs can advise include:
•
Parenting and risk assessments in child care proceedings
•
Family relationships and functioning assessment
•
Domestic violence
•
Residence and contact
•
Assessment of injuries and causation.
•
Drug and alcohol dependency.
For more information on general practitioners, see www.rcgp.org.uk Sample questions:
1.
Has the child sustained any injury or harm?
2.
Please comment as to the likely cause, mechanism or timing of any injury
or harm sustained by the child.
Please comment on the difficulty or ease with which it is possible to date
3.
the injury or harm in the case of this child’s injuries?
Please provide an opinion on whether there has been any parental failure
4.
to protect the child.
Please comment on the relationship within the family between
5.
XXX and XXX.
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Template pro-formas forthe preliminary Experts in family courts: enquiries of experts family proceedings guideinand sample questions
Experts in the family courts: guide and sample questions
Law Society 2013 © 308
Law Society 2013 ©
© Stephen Parker 2014
Introduction Whenever experts are instructed in family and children court proceedings, there are a number of matters which usually apply to such instructions and to the terms and conditions which attach to them. Accordingly, the Law Society has developed a suite of templates with standard text which practitioners can adopt or adapt. They cover:
•
letters of instruction
•
pre-proceedings letters of instruction, for local authority use
•
preliminary enquiries of an expert
•
terms and conditions to accompany an instruction
•
a guide to types of expert and sample questions
They can be found on the Law Society website at www.lawsociety.org.uk under Advice. We hope that in addition to helping the parties, the templates will assist experts by reducing the length of letters of instruction and keeping the detail specific to the particular instruction, as well as facilitating greater consistency in material which is likely to be common to the majority of instructions. The templates have been drafted with the revised Practice Direction 25 in mind, issued at the beginning of 2013. They have been prepared by the Law Society’s Family Law Committee and Children Law Sub-Committee, and we are especially grateful to committee member Noel Arnold for his work on them.
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This document These three pro-forma deal in turn with (1) the solicitor making enquiries of experts who they are considering instructing; (2) the experts who have been approached answering the enquiries of the solicitor; and (3) the solicitor’s proposal to the court. They have been drafted carefully to ensure that all the details required by the new version of PD25 are dealt with. We are grateful to members of the Faster Family Justice Group for their contributions to its development.
Instructing an expert Before instructing an expert, it is essential that the instructing solicitor is satisfied with the expert’s qualifications, relevant experience and post qualification training. Further guidance on this, and on sources of information about experts, is provided in the guide to types of expert and sample questions referred to above.
Disclaimer These templates are intended as a guide and are to be adapted or modified for the facts of a particular situation. Whilst all reasonable care has been taken in the preparation of these forms, the Law Society cannot accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of relying upon their contents.
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Template pre-proceedings ofcourts: Experts in the letter family instruction to experts family proceedings guideinand sample questions
Experts in the family courts: guide and sample questions
Law Society 2013 © 314
Law Society 2013 ©
© Stephen Parker 2014
Introduction Whenever experts are instructed in family and children court proceedings, there are a number of matters which usually apply to such instructions and to the terms and conditions which attach to them. Accordingly, the Law Society has developed a suite of templates with standard text which practitioners can adopt or adapt. They cover:
•
letters of instruction
•
pre-proceedings letters of instruction, for local authority use
•
preliminary enquiries of an expert
•
terms and conditions to accompany an instruction
•
a guide to types of expert and sample questions
They can be found on the Law Society website at www.lawsociety.org.uk under Advice We hope that in addition to helping the parties, the templates will assist experts by reducing the length of letters of instruction and keeping the detail specific to the particular instruction, as well as facilitating greater consistency in material which is likely to be common to the majority of instructions. The templates have been drafted with the revised Practice Direction 25 in mind, issued at the beginning of 2013. They have been prepared by the Law Society’s Family Law Committee and Children Law Sub-Committee, and we are especially grateful to committee member Noel Arnold for his work on them.
This document This document is a pre-proceedings template letter of instruction for local authorities’ use. We are grateful to members of the Faster Family Justice Group for their contributions.
Instructing an expert Before instructing an expert, it is essential that the instructing solicitor is satisfied with the expert’s qualifications, relevant experience and post qualification training. Further guidance on this, and on sources of information about experts, is provided in the guide to types of expert and sample questions referred to above.
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Disclaimer Note that these templates are intended as a guide and are to be adapted or modified for the facts of a particular situation. Whilst all reasonable care has been taken in the preparation of these templates, the Law Society cannot accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of relying upon their contents.
Dear XXXX Pre-proceeding instruction for an assessment Date of appointment with you: [time and date] Date by which your report must be provided to us: [time and date] Thank you for agreeing to provide a pre-proceedings expert report concerning [name of person to be the subject of the assessment]. As you can see from the heading there is a deadline for you to provide your report. I refer to an email string between your secretary, XXX and myself of [date], which confirms that you will be able to work to the timescale given in the heading of this letter. I would be grateful if you would inform me if, for any reason, you anticipate not being able to keep to the timetable. I am the lead solicitor for the purpose of this instruction and the solicitor to whom you should look for instructions and information. I have made an appointment for [name of person to be the subject of the assessment] to meet you at the [name of venue] at [time and date]. There are no live court proceedings in this matter as the local authority has not yet made an application to the court. However, the local authority has considered and continues to keep under review whether to make an application to the court concerning the child/ren in this case. As such the matter is at the ‘pre-proceedings’ stage, which means that the local authority is continuing to work with the parents and the family to try to narrow the issues and possibly avoid court proceedings. [Amend as necessary: The local authority has sent the parents and/or other persons with parental responsibility of the child/ren a Letter before Proceedings (LbP) pursuant to statutory guidance. That letter invited those persons to attend a Preproceedings Meeting (PpM) with the local authority to further discuss the issues. At/after the PpM, it was agreed that you should be instructed to undertake an assessment and provide a report. Therefore, your instruction is a joint instruction by the local authority and [list those persons who have agreed to the instruction]. [This letter has been agreed by those persons and/or their legal representatives].
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Please refer to Schedule 1 of this letter for details of the key persons involved and their legal representatives. Issues The issues of concern to the local authority in this case are: [numbered list of issues] The following assessments have been carried out or will be carried out:
Basis of your instruction You are being instructed on the basis that you will provide an expert opinion entirely independently of the local authority and the other persons who have agreed to the instruction. I am instructing you as the solicitor for local authority, [but this letter of instruction has been agreed by those persons and/or their legal representatives].
Background Enclosed with this letter are the following documents [list the documents]. If having considered the documents enclosed, you consider that you require any further documents, please contact me and I will consult the other persons who have agreed to this instruction or their legal representatives. I will also send to you copies of any relevant documents received after the date of this letter that have not already been sent to you. [deal with any issues concerning GP/medical records i.e. whether these are enclosed or whether they have been requested and will be sent out later]. In brief, the background in this matter is as follows: [insert background information]
Your instructions This instruction incorporates the terms and conditions referred to in Standard terms and conditions to accompany a letter of instruction to experts in family proceedings which can be found here:
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www.lawsociety.org.uk (see under Advice) [or attach to these instructions, modified as necessary]. That document deals with issues such as: your duties, CRB checks and the media in courts. It concerns the instruction of experts within family court proceedings. As this matter is not yet the subject of court proceedings, the terms in that standard document only apply insofar as they can to a case which is not in court proceedings. That document also has information about your fees but those do not apply in this case. Please see below in this letter under the heading ‘Payment of your fees’. [The parents/persons with parental responsibility have granted you permission to see the child/ren] 1. [list questions to be answered] For sample questions to experts, please go to: www.lawsociety.org.uk under Advice
2.
Please comment on any other matter you consider relevant.
Please avoid expressing a view regarding the factual disputes in this case, as this is the province of the court (if court proceedings do start at some stage). Where appropriate, it would be of assistance if you could express your opinion on the basis of alternative findings of fact.
Payment of your fees Your fees will be met by the local authority. Please ensure that your invoice contains a breakdown of the work done. Please send me an estimate of the cost of your assessment within the next 7 days if you have not already done so. Kindly confirm receipt of this letter and its enclosures. Yours sincerely [name of lawyer] [firm/organisation name]
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Template letter of instruction experts Experts in theto family courts: in family proceedings guide and sample questions
Experts in the family courts: guide and sample questions
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Introduction Whenever experts are instructed in family and children court proceedings, there are a number of matters which usually apply to such instructions and to the terms and conditions which attach to them. Accordingly, the Law Society has developed a suite of templates with standard text which practitioners can adopt or adapt. They cover:
•
letters of instruction
•
pre-proceedings letters of instruction, for local authority use
•
preliminary enquiries of an expert
•
terms and conditions to accompany an instruction
•
a guide to types of expert and sample questions
They can be found on the Law Society website at www.lawsociety.org.uk under Advice. We hope that in addition to helping the parties, the templates will assist experts by reducing the length of letters of instruction and keeping the detail specific to the particular instruction, as well as facilitating greater consistency in material which is likely to be common to the majority of instructions. The templates have been drafted with the revised Practice Direction 25 in mind, issued at the beginning of 2013. They have been prepared by the Law Society’s Family Law Committee and Children Law Sub-Committee, and we are especially grateful to committee member Noel Arnold for his work on them.
This document This document is a template letter of instruction for instructing practitioners’ use. We are grateful to members of the Faster Family Justice Group for their contributions to its development.
Instructing an expert Before instructing an expert, it is essential that the instructing solicitor is satisfied with the expert’s qualifications, relevant experience and post qualification training. Further guidance on this, and on sources of information about experts, is provided in the guide to types of expert and sample questions referred to above.
Disclaimer These templates are intended as a guide and are to be adapted or modified for the facts of a particular situation. Whilst all reasonable care has been taken in the preparation of these templates, the Law Society cannot accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of relying upon their contents. 321
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Dear XXXX •
[Applicant] v (1) [Respondent] v (2) [Respondent] v (3) [Respondent]
•
Proceedings before the [name of court]
•
Case No: [case number]
•
Date of appointment with you: [time and date]
•
Date by which your report must be received by us: [time and date]
•
Date by which your report must be lodged: [time and date]
Thank you for agreeing to provide an expert report in the case of my client, [client name]. As you can see from the heading there is a deadline for the lodging of the report. I refer to an email exchange between your secretary, XXX, and myself of [date], which confirms that you will be able to work to all the timescales given in the heading of this letter. I would be grateful if you would inform me if, for any reason, you anticipate not being able to keep to the timetable. It would be helpful if you could consider the questions at Section E of this letter and let me know immediately if any of those questions (or their wording) appear problematic to you. I am the lead solicitor for the purpose of this instruction and the solicitor to whom you should look for instructions and information. I have made a clinical appointment for [client name] to meet you at the [name of venue] at [time and date]. [No final hearing has been fixed in this matter as yet and therefore I am not seeking any dates to avoid from you as I do not anticipate a hearing being listed in the near future at which your attendance will be required. However, this may become necessary in the future.] OR [A hearing has been fixed for XXXX and your attendance will be required on XXX at XXX. Kindly confirm as soon as possible that you are available to attend.] A.
Summary of proceedings
The proceedings concern an application by [applicant’s name] for [list orders sought] concerning [names of child/ren and their dates of birth, if applicable]. [The child/ren currently live in foster care/with parents/with a family member – specify if applicable]. Please refer to Schedule 1 of this letter for details of the parties and their legal representatives.
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B. Issues The issues before the court in respect of this case are: [numbered list of issues] When you consider the documents you will see that there has already been an assessment of [name of person subject of assessment] by [name of assessor/expert]. The court has identified particular issues which require consideration and it is to that end that the court has approved your instruction. Those issues are: XXXXX. OR There has not already been an assessment of [name of person subject of assessment] by a [specify area/field of expert discipline] because XXXXX. The court has identified that such an assessment is necessary and has therefore approved your instruction. Generally in the case, the following assessments have been carried out or will be carried out:
C.
Basis of your instructions
Pursuant to the directions made in the Case Management Order, dated XXXX you are being instructed on the basis that you will provide an expert opinion entirely independently of the parties. I am instructing you as the solicitor for XXXXXX, [but this letter of instruction has been agreed between the parties]. D.
Background to the proceedings
Enclosed with this letter are all documents filed at court which comprise the working bundle. Those documents are listed [in Schedule 2 of this letter] OR [in the enclosed index from the proceedings]. [The parties may have agreed not to send all documents in which case specific information should be inserted here about what documents are being provided]. If, having considered the documents enclosed, you consider that you require any further documents, please contact me and I will consult the other legal advisors. I will also send to you copies of any relevant documents received after the date of this letter that have not already been sent to you. [deal with any issues concerning GP/medical records i.e. whether these are enclosed or whether they have been requested and will be sent out later]. 323
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In brief, the background to these proceedings and in this matter is as follows: [insert background information]
E.
Your instructions
This instruction incorporates the terms and conditions referred to in Standard terms and conditions: To accompany a letter of instruction to experts in family proceedings which can be found here: www.lawsociety.org.uk xxx [or attach to these instructions, modified as necessary]. This deals with issues such as: your duties, CRB checks and the media in courts. The document also has information about your fees but please see below in this letter under the heading ‘F. Payment of your fees’ as to whether or not those terms are incorporated into this instruction. [The court has granted you permission to see the child/ren] 1.
[list questions to be answered] For sample questions to experts, please go to:
www.lawsociety.org.uk under Advice
2.
Please comment on any other matter relevant to the court’s determination of
these proceedings. Please avoid expressing a view regarding the factual disputes in this case, as this is of course the province of the court and no findings of fact have been made in this matter OR [if findings have been made refer to judicial findings in any schedule of allegations or judgment of the court]. Where appropriate, it would be of assistance if you could express your opinion on the basis of alternative findings of fact. F.
Payment of your fees
[Insert one of the following options:] EITHER In this case none of the paying parties have the assistance of a Community Legal Services (CLS) Funding Certificate and therefore insofar as your fees are concerned, none of the standard terms and conditions contained in the document: ‘Standard terms and conditions: To accompany a letter of instruction to experts in family proceedings’ apply. Your fees will be met by [name(s) of paying parties] in [full] OR [specify any division of shares]. [list any specific instructions as to payment of fees]
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[If you have selected the above option this is likely to be because the parties to the case are privately paying. If there no paying party has CLS Funding then section ‘G. Specific details to payment’ will not apply and can therefore be deleted.] OR As one or more of the paying parties have the assistance of a Community Legal Services (CLS) Funding Certificate, this instruction fully incorporates all of the standard terms and conditions (including the section: ‘Payment of your fees’) contained in the document: ‘Standard terms and conditions: To accompany a letter of instruction to experts in family proceedings’ which can be found here: [insert link to website where the document is published]. In accepting this instruction you agree to the terms set out in that standard document. If you are not familiar with that document or you do not have access to it, please contact me immediately [within 2 days] so that I can send a copy to you. Please note that it is a condition of this instruction that where you or the organisation that you work for (or through) have your/their own terms and conditions about fees, the ‘Payment of your fees’ section of the standard terms and conditions document referred to will prevail if there is any inconsistency between your own terms and those set out in the standard terms and conditions document. [If the lead solicitor wishes to exclude from this instruction any aspect/term or condition from the standard terms and conditions, that should be made clear and should be set out here]
G. Specific details as to payment The fees for your instruction will be met in [full] OR [specify any division] shares by [name(s) of paying parties]. [Insert one of the following four options:] EITHER In your case, the LSC has set a maximum hourly rate, which is £XXX. This means that you cannot charge, or be paid, a higher hourly rate. OR In your case, the LSC has not yet set a maximum hourly rate, as your field of expertise is not listed in the Funding Order. This means that an application to the LSC for prior authority is necessary to approve your hourly rate. [Explain whether prior authority has been applied for or granted and if granted specify the total sum which has been approved by prior authority].
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OR In your case, the LSC has set a maximum hourly rate, which is £XXX. You have not agreed to work for that rate and so an application to the LSC for prior authority is necessary to approve your hourly rate. [Explain whether prior authority has been applied for or granted and if granted specify the total sum which has been approved by prior authority]. OR In your case, there is no maximum hourly rate because all the paying parties’ CLS Funding Certificates pre-date the changes which brought in maximum hourly rates. In those circumstances, [explain whether prior authority has been applied for or granted and if granted specify the total sum which has been approved by prior authority] OR [the LSC/court will assess the reasonableness of your hourly rate and total fees charged at the end of the case]. Kindly confirm receipt of this letter and its enclosures. Yours sincerely [name of lawyer] [firm/organisation name]
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Standard terms and in conditions to courts: Experts the family accompany a letter instruction guide andofsample questions to experts in family proceedings
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Introduction Whenever experts are instructed in family and children court proceedings, there are a number of matters which usually apply to such instructions and to the terms and conditions which attach to them. Accordingly, the Law Society has developed a suite of templates with standard text which practitioners can adopt or adapt. They cover:
•
letters of instruction
•
pre-proceedings letters of instruction, for local authority use
•
preliminary enquiries of an expert
•
terms and conditions to accompany an instruction
•
a guide to types of expert and sample questions
They can be found on the Law Society website at www.lawsociety.org.uk under Advice. We hope that in addition to helping the parties, the templates will assist experts by reducing the length of letters of instruction and keeping the detail specific to the particular instruction, as well as facilitating greater consistency in material which is likely to be common to the majority of instructions. The templates have been drafted with the revised Practice Direction 25 in mind, issued at the beginning of 2013. They have been prepared by the Law Society’s Family Law Committee and Children Law Sub-Committee, and we are especially grateful to committee member Noel Arnold for his work on them.
This document This document offers standard terms and conditions for the lead solicitor and other parties to the instruction to use. We would like to acknowledge the assistance of the Association of Lawyers for Children, Resolution, and the Family Justice Council in its development.
Instructing an expert Before instructing an expert, it is essential that the instructing solicitor is satisfied with the expert’s qualifications, relevant experience and post qualification training. Further guidance on this, and on sources of information about experts, is provided in the guide to types of expert and sample questions referred to above.
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Disclaimer These templates are intended as a guide and are to be adapted or modified for the facts of a particular situation. Whilst all reasonable care has been taken in the preparation of these templates, the Law Society cannot accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of relying upon their contents.
STANDARD TERMS AND CONDITIONS OF AN INSTRUCTION TO AN EXPERT IN FAMILY PROCEEDINGS Your duties as an expert witness to the court The Family Procedure Rules 2010 (FPR 2010) came into force on 6 April 2011. Of particular relevance to you, as an expert witness to the court is Part 25 of the FPR 2010. Your duties to the court are set out in more detail in the accompanying practice direction to Part 25: Practice Direction 25B ‘The Duties Of An Expert, The Expert’s Report And Arrangements For An Expert To Attend Court’. This can be downloaded from: http://www.justice.gov.uk/courts/procedure-rules/family/parts/ part_25. The section on duties of experts is at paragraph 3. All experts in family proceedings relating to children have an overriding duty to the court which takes precedence over any obligation to the person from whom the expert received instructions or by whom the expert is paid. You should ensure that you have read and are aware of your duties to the court. If you have any questions then you should contact your lead solicitor. The conclusion of your report should be verified by a statement in the following form:
‘I confirm that I have made clear which facts and matters referred to in this
report are within my own knowledge and which are not. Those that are within
my own knowledge I confirm to be true. The opinions I have expressed
represent my true and complete professional opinions on the matters to which
they refer.’
Please note that in accordance with Practice Direction 25B, after you have filed your report, you may be asked supplementary questions by any or all of the parties and you may also be asked to attend an experts’ meeting. It is a condition of your instruction that if the court directs that an experts’ meeting should take place, that you take part in that meeting in person or by telephone/video link.
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Contact with others You may wish to contact directly the other solicitors or any other professionals in the proceedings in which you are instructed. Please feel free to do so. However, if in your contact with other professionals you discuss any matters of relevance, please inform your lead solicitor of that fact. Please keep a careful written note of all persons participating in the discussion and a summary of the discussion itself. If documents are exchanged with one party, please copy them to all the others.
Confidentiality Court papers in Children Act 1989 proceedings are confidential and cannot be disclosed without the court’s permission. This confidentiality also attaches to the substance of those papers. It is therefore most important that you should respect the confidentiality in relation to the information and papers disclosed to you in these proceedings. If you believe it necessary or useful for you to discuss the papers or their substance with another colleague or expert, please inform your lead solicitor who, having consulted with other legal representatives, will seek the court’s permission.
The timetable The court will have directed that your report should be filed by a particular date. If at any time there is a delay in your plan and you need to seek a change to the timetable, please inform your lead solicitor promptly so that s/he can inform the other parties and the court if appropriate. It is always helpful if you let your lead solicitor know how you plan to carry out your work and send to him/her a schedule of your appointments with the people who are going to be involved in your assessment. If you require any help in arranging meetings or contacting the other legal representatives then please inform your lead solicitor. If you do not inform your lead solicitor that you require assistance, s/he will assume that you will go ahead, organise visits and meetings and will make your own arrangements.
Disclosure of your report Your lead solicitor is under a duty to disclose your report to the court and the parties and s/he will circulate your report upon receipt. If you believe that, exceptionally, your report should not be disclosed to any party please inform your lead solicitor immediately so that s/he can seek the court’s direction.
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Who will do the work It is expected (unless you have written instructions to the contrary) that all aspects of your assessment (including any testing) and report writing will be conducted solely by you. The parties instructing you will have provided the court with information about your expertise and the court will have directed the instruction on the basis that you will be the only person involved in undertaking the work. If you believe that you need to involve another person, such as an assistant, then you must not proceed to involve that person (in any way) unless you have the express and written agreement of your lead solicitor.
The media in courts Accredited members of the press can now attend most family hearings as of right, either in the Family Proceedings Court, County Court or High Court. Members of the press do not need to give notice of their intention to attend. Members of the press are not entitled to attend adoption hearings, or hearings which link applications for care and placement orders, although they can apply to attend these hearings. The court can be asked to exclude the press where:
a)
it is necessary in the interests of a child concerned in, or connected with,
the case;
b)
a party or witness (or a person associated with a party or a witness) needs
to be protected, for example where a witness’ safety may be at risk if the
media attended court;
the case may be disrupted if the media is present, for example if there is
c)
not enough room in court; or
justice may otherwise be impeded or prejudiced, for example, where
d)
there is a risk that a witness will not give full or frank evidence because the
media is present.
The rules on disclosure of documents within children proceedings remain unchanged and material identifying the child or the detail of the case can only be disclosed with the permission of the court which would necessitate an application to the court. If you are concerned about giving evidence at a hearing which the press may attend then please raise this with your lead solicitor.
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CRB checks Where you (or any person working with you) is likely to work or come into contact directly with a child in carrying out your instructions, you and/or the other person working with you must have been appropriately checked by or be registered with the Disclosure and Barring Service (which merges the Criminal Records Bureau and Independent Safeguarding Authority). It is agreed that your lead solicitor is entitled to ask for confirmatory evidence of the appropriate checks/registration from you and that you will provide this promptly if so requested.
After the final hearing Your lead solicitor should notify you of the outcome of the final hearing and send to you any transcript of the judgment/written reasons of the court. Your lead solicitor should also notify you of the use made by the court of your evidence. You should feel free to seek such information from your lead solicitor if these things are not done.
Payment of your fees How your fees are to be paid can be complex. You must read the corresponding section in your letter of instruction, under the heading ‘F. Payment of your fees’ as specific information pertaining to your instruction will be set out in that section. (instructing solicitor: see template letter of instruction on www.lawsociety.org.uk under Advice)
Terms which apply where any paying party is in receipt of CLS Funding You must read these detailed sections which consist of standard terms and conditions which apply whenever one or more of the paying parties has the assistance of a Community Legal Services (CLS) Funding Certificate issued by the Legal Services Commission (LSC). Ultimately your fees will be assessed by either the court or LSC at the conclusion of the case as to reasonableness in terms of both hourly rate charged and amount of time spent. The parties’ legal representatives cannot be responsible for any fees over and above those finally assessed and paid by the LSC.
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Fees that the LSC will, and will not pay A table of maximum hourly rates that the LSC is allowed to pay to different types of expert witnesses is contained in the Community Legal Service (Funding) (Amendment No 2 Order 2011, [‘the Funding Order’]. The rates can be found here: http://www.legalservices.gov.uk/docs/cds_main/Experts_rates.pdf The Funding Order has effect in respect of instructions to expert witnesses whose fees will be met through CLS Funding Certificates issued after 2 October 2011. Such hourly rates can only be exceeded with the written prior authority of the LSC and in the circumstances set out in the Funding Order. In respect of independent social work, the applicable hourly rate has been pegged at the rate from time to time routinely paid by Cafcass for such services. Information about the applicable hourly rates in your specific instruction and/or information about any prior authority obtained/applied for in your case will be found in your letter of instruction under the heading ‘G. Specific details as to payment’. In addition, the LSC will not pay:
a)
any separate administration fee including, but not limited to, a fee in
respect of offices and consultation rooms, administrative support including
typing services, subsistence and couriers;
any cancellation fee where notice of cancellation is given more than 72
b)
hours before the relevant hearing or appointment;
any travelling costs in relation to vehicle mileage in excess of 45 pence
c)
per mile;
d)
any fee for travelling time in excess of £40 per hour;
e)
any costs or expenses of or relating to the residential assessment of a child;
f)
any costs or expenses of or relating to treatment, therapy, training or other
interventions of an educative or rehabilitative nature;
any costs of and expenses relating to independent social work enquiries or
g)
expertise provided outside England and Wales; and
any costs and expenses in relation to contact activities including fees,
h)
charges and costs of contact centres and any reports or other
assessments of contact between children and adults. However, please
note that this exclusion does not apply to observation of contact which
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You should therefore ensure that none of these costs are included in your invoice.
Estimate of costs If you have not already done so, you should send your lead solicitor an estimate of your fees in this case, setting out the basis of your calculation bearing in mind specific instructions as to applicable hourly rates and the above restrictions on payment.
Keeping records of time Please also note that there are important terms about keeping records of time in the various LSC contracts in operation and the standard terms of those contracts. In order to comply, it is a term of your instruction that if your total fees are to exceed £250 you must keep accurate records of all the time spent on the work for which you have been instructed and of the work done. You must also permit the LSC to audit your records if necessary.
Invoices and payments on account Please prepare separate invoices in respect of each paying party, showing the share for which they are responsible. Your invoice should provide a breakdown of the hours that you have spent on different categories of work (i.e. reading papers, meetings, report writing, travelling) with the charging rate applicable to each type of activity. The current policy of the LSC, when assessing bills, is to require this information to be clearly summarised on an expert witness’ invoice, and the LSC will not process or pay your fees without this. On receipt of your invoice the legal representatives for the CLS funded parties are entitled to, and should promptly make a claim for payment on account of your fees to the LSC. The LSC will only process applications for payments on account which reflect the maximum hourly rate permissible, or which accord with any prior authority granted. Promptly upon receipt of such payment on account each representative should make this payment on account to you. Please bear in mind that although your lead solicitor will do his/her best to assist you in obtaining prompt payment, s/he can only be responsible for the share of your fees attributable to his/her client. The other representatives involved in this instruction to you are responsible likewise only for the share attributable to their client(s).
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Final assessment by the LSC and recoupments Please note that payments on account may, however, be recouped by the LSC at the end of the case following the final assessment of the bill. Such recoupment will only apply to any sum, paid on account, which exceeds the amount finally allowed on assessment by either the court or the LSC. You should also be aware that even if your hourly rate accords with the table in the Funding Order, it is open to the LSC to take the view that it considers the number of hours of work carried out to be excessive, and to reduce your final invoice accordingly. If your fees are reduced on assessment the relevant party’s legal representative should notify you within 7 days of his/her receiving notification from the LSC or the court. If you wish to make representations with regard to any reduction then you should notify the relevant party’s legal representative within 7 days (of notification of reduction being communicated to you) and provide the text of those representations, or any supporting documentation as the case may be so that your representations can be put to the LSC. In accepting this instruction you therefore agree that if your fees are subsequently reduced (whether by the court or by the LSC) you will promptly reimburse the difference between the amount paid on account to you, and the amount finally allowed on assessment, to the parties’ legal representatives.
Exceeding your costs estimate It is important that during the course of your assessment you inform your lead solicitor immediately if you are likely to exceed any costs estimate which you have already provided to your lead solicitor. There are three reasons for this:
1.
If prior authority has been granted by the LSC, this only extends to your
initial estimate. Any fees over and above that estimate cannot be paid to
you without the LSC’s prior approval.
If an application for prior authority is not needed because your estimate
2.
uses approved hourly rates and the parties believe that it falls within what
the LSC would usually consider to be within the normal range of fees for
this type of work, you will not be paid a higher fee without prior approval
from the LSC, or following those fees being allowed by the LSC on final
assessment of our bill.
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3.
All CLS funding certificates have costs limitations set by the LSC, and the
parties legal representatives will need to make an application for an
increase to the costs limitations whenever it appears that the aggregate
of legal and other fees to be incurred in the case is likely to exceed the
current limit. If you exceed your fee estimate without prior notification to us your fees may therefore not be met in full.
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Template Local Authority summary Experts incase the family courts: in care proceedings guide andapplications sample questions
Experts in the family courts: guide and sample questions
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Introduction The Law Society has developed guidance for local authority solicitors to use when drafting documents in care proceedings. It has been developed to take account of the new Public Law Outline which is being implemented from 1 July 2013, and covers the drafting of the following local authority documents: • • • • • • • •
threshold statement schedule of proposed findings case summary position statements skeleton arguments outstanding issues chronologies draft case management orders
and supports templates for the following documents: • • • •
threshold statement schedule of proposed findings case summary draft orders
which can be found at: www.lawsociety.org.uk under Advice. The guidance and templates will be kept under review and are likely to be revised in the light of experience gained through the PLO trial. This document This document is a template Local Authority case summary. Acknowledgements The guidance and the templates have been prepared by the Law Society’s Children Law Sub-Committee, and we are especially grateful to committee members Dorothy Simon, Uma Mehta and Graham Cole for their work on them. We are also grateful to members of the Faster Family Justice Group for their contributions to their development. Disclaimer The guidance and the supporting templates are intended to inform and support good practice. They are intended as a guide to be adapted or modified for the facts of a particular situation. Whilst all reasonable care has been taken in their preparation, the Law Society cannot accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of relying upon their contents.
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Case Number:
IN THE (insert name of court) COURT IN THE MATTER OF THE CHILDREN ACT 1989 THE CHILD IS: (insert name of child(ren) DATE OF BIRTH: (and d.o.b.) HEARING DATE: JUDGE: CASE SUMMARY FOR LOCAL AUTHORITY FOR COURT HEARING ON …………(date) 1. Reading List by reference to the Index. The court has a core/full bundle for the hearing. To assist the court the significant documents are listed below. A
CASE MANAGEMENT DOCUMENTS
1.
Case Summary dated
2.
Draft Case Management Order dated
Bundle Ref
CURRENT SCHEDULE OF FACTS AND FINDINGS (Proposed) schedule of findings as to threshold dated (Party) Response dated B
CURRENT COURT DIRECTIONS
1.
Order of (judge/court) dated
C
RECENT RELEVANT EVIDENCE
1.
Statement of (name) (and professional role if appropriate) dated
D
UPDATED CARE PLANS
1.
Care Plan for (name of Child) dated
E
RECENT REPORTS
1.
Report of (name and professional role) dated
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2. Reading Time:
3. Parentage1 Parent 1.
Mother
2.
Father
Surname
First Name
Parent of
DOB/ Age
Immigration Status
Mental Capacity Y/N
PR Y/N
3. 4. Other significant persons Persons with whom the child has regular contact or who are potential family and friends carers Relationship to child
Surname
First Name
DOB/ Age
Immigration Status
1.
Mental Capacity Y/N
PR Y/N
2. 3 5. Applications and other proceedings The applications that have been issued in these proceedings are: Applicant
Order Sought
Date
Bundle ref.
The following past, current or proposed proceedings (e.g. criminal proceedings, other family proceedings, disciplinary, immigration or mental capacity/health determinations) are relevant to the determination of the application(s): Proceedings
1
Parties
Court/Body
Stage reached
This information is on Form C110 except for the immigration status
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6.
Arrangements for the child/ren The present arrangements for the child/ren is/are 1. Living arrangements:
Child
Living with
2. Contact arrangements: Child
Having contact with
Frequency
7. Summary of events and case update The following is a brief summary of the circumstances giving rise to the application and updated information on the progress of the case
8. Timetable for the child and timetable to final hearing The timetable for the child and the timetable to final hearing are est out below. [Include all assessment completion dates, statutory review and panel dates, moves of school or placement, dates of any criminal trial where a child may be giving evidence, and any other important dates in the child’s life] Date
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9. Steps not taken/non-compliance with directions The following steps have not been taken for the reasons explained. The effect on the timetable is as follows: Key Date
Step to be taken
Reason for noncompliance
Expected date of compliance/ Effect on timetable
10. Key issues for the forthcoming hearing and position in summary of each party with reference to attached draft Order The position of each party is set out in summary on each issue. A draft order is attached to assist the court. This was prepared following the advocates meeting. This [is/is not] an agreed document. Local Authority position: Respondent Mother’s position: Father’s position: Guardian’s position: Other parties’ position: 11. Contact details of parties Party Applicant
Respondents (1) Mother (2) Father (3) Other party
Status Advocate/ Solicitor Social worker Team Manager
Name
Tel.
Email
Advocate/ Solicitor Advocate /Solicitor Advocate /Solicitor
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Child(ren)
Advocate /Solicitor Children’s Guardian
…………………………… Name of lawyer preparing On behalf on …..Council Dated…………………….
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Good practice in drafting care courts: Experts in the family proceedings documents guide and sample questions
Experts in the family courts: guide and sample questions
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Introduction The Law Society has developed guidance for local authority solicitors to use when drafting documents in care proceedings. It has been developed to take account of the new Public Law Outline which is being implemented on a pilot basis from 1 July 2013. The guidance covers the drafting of the following local authority documents:
threshold statement schedule of proposed findings case summary position statements skeleton arguments outstanding issues chronologies draft case management orders
and supports templates for the following documents:
threshold statement schedule of proposed findings case summary
which can be found at: www.lawsociety.org.uk under Advice. The guidance and templates will be kept under review and are likely to be revised in the light of experience gained through the PLO trial. Acknowledgements This guidance and the templates have been prepared by the Law Society’s Children Law Sub-Committee, and we are especially grateful to committee members Dorothy Simon, Uma Mehta and Graham Cole for their work on them. We are also grateful to members of the Faster Family Justice Group for their contributions to their development. Disclaimer This guidance and the supporting templates are intended to inform and support good practice. They are intended as a guide to be adapted or modified for the facts of a particular situation. Whilst all reasonable care has been taken in their preparation, the Law Society cannot accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of relying upon their contents.
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Threshold Statement The expectation under the PLO is that the threshold statement is to be a succinct one or two page document. The introductory paragraph should be very brief and go no further than the wording in the template. If the local authority’s application is based on a number of heads of significant harm and/or the likelihood of significant harm, these should be set out under separate headings. Specific incidents should be presented briefly in bullet point form under each heading and in chronological sequence if practicable. The concerns itemised in the local authority’s letter before proceedings should be based on the local authority’s evidence of threshold. These itemized concerns should also be used in any later threshold statement if care proceedings are issued, so as to avoid the parents being surprised. If the parents accept or do not oppose the threshold statement, the document as drafted should stand and there should be no need for any further or ‘final’ threshold statement to be prepared. Schedule of proposed findings The court will direct the local authority to draft a schedule of proposed findings if the threshold statement is not agreed or is actively opposed, or if findings are considered necessary in the circumstances of a particular case. The schedule of proposed findings should plead the most significant and relevant incidents upon which findings are required, rather than plead every incident which has occurred. The schedule of proposed findings should be presented to the court in a format which allows for the responses of the other parties to be entered in boxes below each proposed finding. This will ensure that adjacent to each proposed finding is the relevant response or the fact that a response is absent. It is unhelpful to use a table format with columns of responses alongside proposed findings because this risks the format becoming irregular and lengthens the document unnecessarily. Separate documents for responses are equally unhelpful, because they too make the correlation of the proposed findings with the responses difficult. The template of proposed findings provides an example of good practice. Case summary The local authority will draft the case summary for each hearing. The case summary is a document which should be drafted in neutral terms if it cannot be agreed between the parties. The template case summary provides an example of good practice. At paragraph 5 the template provides information about previous proceedings. The court will be likely to give early directions in the absence of agreement between the parties about the relevant documents to be extracted from bundles in previous proceedings.
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The arrangements for the child at paragraph 6 of the template should not include the names and addresses of the child’s carers unless they are already known to the parties, when it may be relevant to include this information. At paragraph 7 the summary of events and case update should provide a brief summary in one or two sentences of the circumstances giving rise to the application. This might be capable of being extracted for use in letters of instruction if appropriate, but the immediate purpose of the paragraph is to provide a concise summary for the court of the steps already taken in the proceedings to date. The timetable for the child at paragraph 8 needs to provide relevant information about how the timescale of the care proceedings will impact upon outcomes for the child. Position statements If the position of any party including the local authority needs to be set out in more detail then a separate position statement should be filed. A position statement is not a statement of evidence. If it seeks to set out the position of that party rather than the legal position on their behalf, then this should be filed as a statement or report of evidence and signed by the witness appropriately. Skeleton arguments Skeleton arguments are filed as directed by the court if the position of each party either in relation to the facts and/or the law needs to be addressed by detailed written submissions. Outstanding issues The court should be notified by application or in writing as soon as any need for additional evidence or practice direction documents is identified, to avoid the adjournment of a forthcoming hearing or other delay. If possible the issues should be resolved in correspondence; if not the case summary or the position statements of the parties should alert the court to the need to resolve this issue at the forthcoming hearing. Chronologies The Key Elements of Good Practice for Local Authorities’ Contribution to Care Proceedings provides an expectation that the social worker will prepare a chronology of significant events. This will be filed by way of background information to the local authority evidence. A legal chronology should not normally be required to be filed in addition to the social work chronology. The social work chronology will contain all significant and relevant information in relation to the circumstances of the case and it should include not only incidents of concern but also examples of good parenting and details of services offered and work undertaken with the child and family. It is not envisaged that the social work chronology will extend into the care proceedings beyond removal of the child, unless this is directed by the court in the circumstances of a particular case. Updating information from the local authority following the removal of the child will ordinarily be filed within updating statements and reports.
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Template schedule of proposed findings Experts in the family courts: in care proceedings guide andapplications sample questions
Experts in the family courts: guide and sample questions
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Introduction The Law Society has developed guidance for local authority solicitors to use when drafting documents in care proceedings. It has been developed to take account of the new Public Law Outline which is being implemented from 1 July 2013, and covers the drafting of the following local authority documents: • • • • • • • •
threshold statement schedule of proposed findings case summary position statements skeleton arguments outstanding issues chronologies draft case management orders
and supports templates for the following documents: • • • •
threshold statement schedule of proposed findings case summary draft orders
which can be found at: www.lawsociety.org.uk under Advice. The guidance and templates will be kept under review and are likely to be revised in the light of experience gained through the PLO trial. This document This document is a template schedule of proposed findings for threshold headings. Acknowledgements The guidance and the templates have been prepared by the Law Society’s Children Law Sub-Committee, and we are especially grateful to committee members Dorothy Simon, Uma Mehta and Graham Cole for their work on them. We are also grateful to members of the Faster Family Justice Group for their contributions to their development. Disclaimer The guidance and the supporting templates are intended to inform and support good practice. They are intended as a guide to be adapted or modified for the facts of a particular situation. Whilst all reasonable care has been taken in their preparation, the Law Society cannot accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of relying upon their contents.
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Schedule of proposed findings for threshold headings in the case of non-accidental injury 1.
The Local Authority submits that on the balance of probabilities the child suffered significant harm through injuries inflicted on or about….. [date] and …[time] [if there are several possible timings for injuries, give more detailr]
2.
There are multiple injuries reported to have been sustained by the child. These are as follows: [List each injury ]
3.
That each of the injuries is non accidental. [refer to doctors’ reports and where they conclude each of the injuries are non accidental] a. injury 1 b. injury 2
4.
That the non accidental injuries were inflicted by: a. b. c. d.
the mother [name]…………… ...or the father ……………….or the intevenor,……………or either the mother……… or the father ……………………..or the intevenor …………………………
5.
That in the event that the mother inflicted the injuries the father failed to protect
6.
That in the event the father inflicted the injuries the mother failed to protect.
7.
The mother failed to seek medical attention promptly in respect of the injuries.
8.
The father failed to seek medical attention promptly in respect of the injuries.
9.
The Local Authority submits that on the balance of probability the child would be at risk of physical harm and exposure to domestic abuse if returned to his/her parent’s care due to the incidents of domestic abuse in their relationship. It is submitted that this harm is significant harm and would be attributable to the care given to him/her by his/her parents.
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Schedule of proposed findings for threshold headings in the case of sexual abuse 1.
The mother/father has failed to protect the child from sexual abuse because -the child was exposed to inappropriate sexual behaviour by their parents and/or other persons when the parents had sexual relations in the child’s presence - the father/or other person said that the mother/father knew he/she had sexually abused the child. - reported concerns about the child’s sexualised behaviour which included …………………………………… -the mother failed to protect the children despite being aware of allegations and behaviour. She continued to allow the father/ other person to bathe/ care for her children regularly and therefore exposed them to sexual harm. -the mother failed to prioritise the child’s needs over her own need for the relationship with [name]…………………
2.
Child A/ B has been sexually abused by ……………….. a. Specify each concern/allegation of sexual abuse
3.
The child would be at risk of further sexual abuse.
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Template threshold statement in courts: Experts in the family care proceedings applications guide and sample questions
Experts in the family courts: guide and sample questions
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Introduction The Law Society has developed guidance for local authority solicitors to use when drafting documents in care proceedings. It has been developed to take account of the new Public Law Outline which is being implemented from 1 July 2013, and covers the drafting of the following local authority documents: • • • • • • • •
threshold statement schedule of proposed findings case summary position statements skeleton arguments outstanding issues chronologies draft case management orders
and supports templates for the following documents: • • • •
threshold statement schedule of proposed findings case summary draft orders
which can be found at: www.lawsociety.org.uk under Advice. The guidance and templates will be kept under review and are likely to be revised in the light of experience gained through the PLO trial. This document This document is a template threshold statement. At Annex A there are threshold examples given by Parker J at the President’s conference on 17 April 2013. Acknowledgements This guidance and the templates have been prepared by the Law Society’s Children Law Sub-Committee, and we are especially grateful to committee members Dorothy Simon, Uma Mehta and Graham Cole for their work on them. We are also grateful to members of the Faster Family Justice Group for their contributions to their development. Disclaimer The guidance and the supporting templates are intended to inform and support good practice. They are intended as a guide to be adapted or modified for the facts of a particular situation. Whilst all reasonable care has been taken in their preparation, the Law Society cannot accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of relying upon their contents.
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Case No. IN THE … COURT IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF (D.O.B :)
______________________________________ THRESHOLD STATEMENT ______________________________________
The Local Authority submits that the threshold criteria are satisfied as follows: (Set out in brief the elements of the threshold criteria relied upon) e.g 1. Physical Harm The child/ren has/have been exposed to domestic abuse within the family home…… The child/ren has/have suffered physical assaults resulting in injuries…….. 2. Neglect The parent/s has/have failed to prioritise the child’s/ren’s needs and set appropriate boundaries for example……….. The parent/s mental health issues have impacted on the child/ren……….. The parent/s drug usage has impacted on the child/ren…………. The child/ren has/have suffered neglect due to the poor home conditions including ………………….. 3. Emotional The child/ren has/have suffered emotional harm…………… The issues identified above have not been addressed by the parent/s.
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4. Sexual abuse The child/ren has / have suffered sexual abuse / harm………………. 5. Beyond parental control The child/ren is/are beyond the parental control of his/her/their parents because…. This behaviour is putting the child at risk of significant harm because…. or The Local Authority is not seeking any findings in relation to the child/ren being beyond parental control.
Dated: ….. Solicitor for the (name of Council)
Annex A Examples of threshold given by Parker J at the President’s conference on 17 April 2013 [text to follow here]
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CHILD ARRANGEMENTS PROGRAMME: FLOWCHART
[CAP:X] = reference to relevant paragraph or section in the Child Arrangements Programme
DISPUTE OVER ARRANGEMENTS FOR CHILDREN
Cases of Exceptional/Extreme Urgency [CAP:12] where injunction/prohibited steps orders are sought, go straight to issue and consider without notice application NB: paperwork must be in order
Signposting [CAP:2] Seek advice from sortingoutseparation.org.uk, a lawyer or a Dispute Resolution Service
Dispute Resolution Services [CAP:5] Parties attend for Mediation/SPIP or other Dispute Resolution Service . Parties to consider Parenting Plan. Self-referral to Contact Centre if required.
Attendance at MIAM [CAP:5.3] (Compulsory for Proposed Applicant unless exemption applies. Proposed Respondent notified and encouraged to attend)
Application [CAP:8] Form C100 and form C1A (if required) to be completed and submitted to the Court, accompanied by any existing Parenting Plan if available (Case will NOT be issued if paperwork not in order)
Allocation/Gatekeeping [CAP:9] Case allocated within Family Court (in accordance with Guidance and Rules). Papers submitted to CAFCASS (Day 1 after issue)
Safeguarding checks [CAP:13] Completed by Cafcass (Day 17 after receipt of application)
Directions on Issue (where necessary) [CAP:9.4] If the Applicant has not attended MIAM and an exemption has not been validly claimed, the Gatekeeping Judge may direct attendance of the parties (or either of them) at MIAM before the FHDRA (below). Other directions may be given.
MIAM [CAP:9.4(1)] Both or either party may be referred to MIAM (where not complied with requirement to attend)
First Hearing Dispute Resolution Appointment (FHDRA) [CAP:14] Attended by parties. Cafcass in attendance (In week 5-6)
Interim Order If necessary in the interests of the child
MIAM Either party may be directed to attend
Where issues of domestic or child abuse arise and fact finding is necessary, filing of statements/ schedule of issues in dispute.
Mediation/Dispute Resolution Attend for Mediation /SPIP or other Dispute Resolution Service. Parties to consider Parenting Plan
Fact Finding Hearing [CAP:20] (Issues of Domestic or child abuse). In accordance with PD12J
Filing of statements - where ordered Welfare (section 7) report?
Dispute Resolution Appointment (DRA) [CAP:19]
Final welfare hearing
Orders to monitor / support contact [CAP:15.5] i.e. Section 11H CA 1989, Section 16, CA 1989
FINAL ORDER
AGREEMENT
Enforcement of Court Order [CAP:21] (Where order is not complied with). Consider (1) swift return before Judge (2) s.11J CA89 (3) Further safeguarding checks (4) determination of any facts on issue
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Public Law Outline 2014 (26 weeks) LA child protection plan Legal Planning meeting Local Authority multi‐disciplinary assessment (45 days max)
Letter before proceedings (legal aid trigger) followed by pre‐proceedings meeting or immediate issue (alert Cafcass)
Pre‐ proceedings
Day 1 and Day 2 Identify/assess alternative carers (FGC if appropriate) – connected persons assessment
Advocates meeting no later than 2 clear days before CMH. Identify experts and draft questions. LA lawyer drafts CMO by 11am on the working day before CMH/FCMH
Issue & allocation S31 application & annex docs to Cafcass If required, contested ICO or ISO or urgent preliminary CMH
Not before Day 12 & no later than Day 18 Stage 2 Case Management Hearing (CMH)
By Day 2: serve docs on parties, allocate proceedings, appoint CG & child’s solicitor (litigation friend if needed), court gives standard directions, considers whether urgent preliminary CMH required and jurisdiction if international element
Experts letter of instruction Court gives case management directions & considers jurisdiction if international element
If required, Further Case Management Hearing (FCMH) – ASAP and no later than day 25
Timetable for the child (LA and CG input). Timetable for the proceedings.
If required, Fact Finding hearing
Consider possible extension of timetable. Record in CMO Issue CMO
Advocates meeting no later than 7 days before IRH. Includes notifying court of need for contested hearing & evidence. LA lawyer files CMO for court by 11am on the working day before IRH
Cafcass final case analysis
Connected Person’s and Special Guardianship Order Assessments (if required)
Cafcass analysis for CMH, including evaluation of LA case
Stage 1
Connected person’s and Special Guardianship Order Assessments
Initial Referral
As directed by the court Stage 3 Issues Resolution Hearing (IRH) which could also become the Final Hearing
Final Case Management directions including extension, if required. Court issues CMO
By Week 26 or earlier Final Hearing (FH) if necessary
Input
Output
PLO stage
FGC: Family Group Conference CG: Children’s Guardian CMO: Case Management Order ICO: Interim Care Order ISO: Interim Supervision Order Note: The court may give directions without a hearing, including setting a date or period for the FH. Reference to Cafcass includes CAFCASS CYMRU
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Classifieds... PSYCHOLOGY
MEDICO LEGAL
CHARITIES
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Chronic Pain Expert Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert. He covers Manchester, Liverpool, Leeds, Birmingham and London. Other locations and Domiciliary visits can be arranged.
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1 in 10 people will have a problem with their liver at some point in their life Will it be you? The Foundation depends on donations to fund this research. Please help us to continue our work
Dr Kershaw’s Hospice relies heavily on legacies from people like you. If you’re in a position to help us care for future generations by leaving money, property, jewellery or belongings to Dr Kershaw’s Hospice, please contact our Legacy Manager: 0161 624 9984 or email
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Foundation for Liver Research Institute of Hepatology, Harold Samuel House 69-75 Chenies Mews London WC1E 6HX Tel: 020 7255 9830 www.liver-research.org.uk www.facebook.com/F4LiverResearch @F4LiverResearch RCN 268211/1134579
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Contact Sales 0207 183 1454 for pricing and availability TSG - PUBLICATIONS
Dr Shelley Eisen Tel: 07973 502 657 Email:
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Promoting the practice, advancement and teaching of veterinary science The Trust supports the Veterinary School at the University of Bristol through funding for equipment and clinical facilities for the treatment and hospitalisation of animals. The most up-to-date equipment needed for new advanced techniques is vital but expensive and facilities for animals undergoing such treatment must be superlative.
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COSTS
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