Draft Order laid before Parliament under sections 80 and 108(1), (2) and (3)(c)(i) of the Courts Act 2003, for approval by resolution of each House of Parliament.
2011 No. [XX] (L. [XX])
The Family Procedure (Modification of Enactments) Order 2011
Laid before Parliament in draft
Made
Coming into force
The Lord Chancellor makes the following Order in exercise of the powers conferred by section 80 of the Courts Act 20031:
In accordance with section 80(1) of that Act, the Lord Chancellor has consulted the President of the Family Division (as the nominee of the Lord Chief Justice2).
In accordance with section 108(2) of that Act, a draft of this instrument was laid before Parliament and approved by a resolution of each House of Parliament.
Citation1
This Order may be cited as the Family Procedure (Modification of Enactments) Order 2011 and will come into force on 6th April 2011.
PART 1MODIFICATION OF TERMINOLOGY
Terminology2
1
For the purpose of this article—
“civil partnership proceedings” means proceedings for a civil partnership order; and
“civil partnership order” means one of the orders mentioned in section 37 of the Civil Partnership Act 20043.
2
In the following provisions, any reference to “ancillary relief” is to be read as a reference to “financial order”—
a
section 49C of the Child Support Act 19914 (in so far as that section relates to civil partnership proceedings); and
b
Part 10 of Schedule 5 and Part 9 of Schedule 15 to the Civil Partnership Act 2004.
3
Unless the context otherwise requires, in any provision which relates to civil partnership proceedings in any enactment, any reference to “cause” or “causes” is to be read as a reference to “proceedings”.
PART 2AMENDMENTS TO PRIMARY LEGISLATION
Amendment of the Courts Act 19713
In section 52 of the Courts Act 19715, after subsection (3) insert—
3A
Subsection (3) does not apply to family proceedings (within the meaning of section 65 of the Magistrates’ Courts Act 1980).
Amendment of the Magistrates’ Courts Act 1980
4
The Magistrates’ Courts Act 19806 is amended as provided in articles 5 to 14.
5
In section 53 after subsection (3) insert—
4
Subsections (1) to (3) are subject, for the purposes of family proceedings in any magistrates’ court, to other provision made by Family Procedure Rules.
6
In section 54—
a
for the heading, substitute “Adjournment and stays”; and
b
after subsection (2) insert—
3
In family proceedings a magistrates’ court may stay the whole or part of any proceedings or order either generally or until a specified date or event.
4
Subsections (1) and (2) are subject, for the purpose of family proceedings in any magistrates’ court, to other provision made by Family Procedure Rules.
7
In section 55 after subsection (8) insert—
9
Subsections (1) to (8) are subject, for the purpose of family proceedings in any magistrates’ court, to other provision made by Family Procedure Rules.
8
In section 56 for “Where” substitute “Subject to other provision made by Family Procedure Rules for the purposes of family proceedings in any magistrates’ court, where”.
9
In section 57 for “Where” substitute “Subject to other provision made by Family Procedure Rules for the purposes of family proceedings in any magistrates’ court, where.”.
10
In section 64—
a
in subsection (1) omit “periodical payment of money, or for the revocation, revival or variation of such an order” and substitute “variation of an order for the periodic payment of money”;
b
after subsection (1) insert—
1A
Subsection (1) does not apply to family proceedings.
c
in subsection (2) for “subsection (1) above” substitute “subsections (1) or (4A)”; and
d
after subsection (4) insert—
4A
Subject to the provisions of any other enactment and to rules of court, the costs of and incidental to all family proceedings in any magistrates’ court (including those required to be issued by complaint and those relating to the making of a periodic payment order) shall be in the discretion of that court and that court shall have full power to determine by whom and to what extent costs are to be paid.
11
After section 65 insert—
Meaning of family procedure rules65A
In this Act, “Family Procedure Rules” means rules made under section 75 of the Courts Act 2003.
12
After section 68 insert—
68APower of the magistrates’ court to order disclosure of documents, inspection of property etc. in family proceedings
1
On the application, in accordance with rules of court, of a party to any family proceedings, a magistrates’ court, in such circumstances as may be prescribed, has the power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his or her possession, custody or power any documents which are relevant to any issue arising out of the proceedings—
a
to disclose whether those documents are in that person’s possession, custody or power; and
b
to produce such of those documents as are in that person’s possession, custody or power to the applicant or, on such conditions as may be specified in the order,—
i
to the applicant’s legal advisers; or
ii
to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or
iii
if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.
2
On the application, in accordance with rules of court, of a party to any family proceedings, a magistrates’ court, in such circumstances as may be prescribed, has the power to make an order providing for any one or more of the following—
a
the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, any party to the proceedings but which is the subject matter of the proceedings or as to which any question arises in the proceedings;
b
the taking of samples of any such property as is mentioned in paragraph (a) and the carrying out of any experiment on or with any such property.
3
This section is without prejudice to the exercise by a magistrates’ court of any power to make orders which is exercisable apart from the provisions of this section.
13
In section 977, in subsections (1)(a) and (2) for “under the Adoption and Children Act 2002 (c 38)” substitute “in family proceedings”.
14
In section 150 before the definition of “family proceedings” insert—
Family Procedure Rules” has the meaning assigned by section 65A above;
Amendment of the Sexual Offences Act 200315
In section 21(12) of the Sexual Offences Act 20038—
a
in paragraph (b) omit “or”;
b
at the end of paragraph (c) insert “or”; and
c
after paragraph (c) insert—
d
is appointed to be the children’s guardian of B under rule 59 of the Family Procedure (Adoption) Rules 2005 (S.I. 2005/2795) or rule 16.3(1)(ii) or rule 16.4 of the Family Procedure Rules 2010 (S.I. 2010/2955),
PART 3AMENDMENTS TO SECONDARY LEGISLATION
Amendment of the Magistrates’ Courts Rules 198116
In the Magistrates’ Courts Rules 19819 in the entry in the Arrangement of Rules relating to rule 3, in the heading to rule 3 and in rule 3—
a
for “and” substitute “,”; and
b
after “1991” the second time it appears, insert “and the Family Procedure Rules 201010.”.
Amendment of the Civil Procedure Rules 1998
17
The Civil Procedure Rules 199811 are amended as provided in articles 18 and 19.
18
In the table following rule 2.1(2)—
a
in entry 5 (Family proceedings), in the second column, omit the current words and substitute “Courts Act 2003, s.75”; and
b
in entry 6 (Adoption proceedings), in the second column—
i
omit “Adoption Act 1976, s.66 or”; and
ii
after “s.141” insert “or Courts Act 2003, s.75”.
19
In rule 57.15(2), for “the Family Proceedings Rules 1991”, substitute “the Family Procedure Rules 201012”.
Amendment of the Data Protection (Subject Access Modification) (Health) Order 200020
In article 4(2) of the Data Protection (Subject Access Modification) (Health) Order 200013—
a
after “1997” for “or” substitute “,”; and
b
after “1996” insert “or the Family Procedure Rules 201014”.
Amendment of the Data Protection (Subject Access Modification) (Social Work) Order 2000
21
The Data Protection (Subject Access Modification) (Social Work) Order 200015 is amended as provided in articles 22 to 24.
22
In article 5(2)(a), for “(t) or (tt)” substitute “(t), (tt), (v) or (w)”.
23
In article 7(2), in section 7(12)(a) of the Data Protection Act 1998 as modified, for “(t) or (tt)” substitute “(t), (tt), (v) or (w)”.
24
In the Schedule—
a
after paragraph 1(u) insert—
v
data processed by any children’s guardian appointed under rule 16.3(1)(i) or rule 16.4 of the Family Procedure Rules 201016;
w
data processed by any officer of the Children and Family Court Advisory and Support Service or Welsh family proceedings officer for the purpose of the functions referred to in rule 16.33 (insofar as it applies to proceedings to which Part 12 of the Family Procedure Rules 2010 applies) or 16.38(1) of the Family Procedure Rules 2010.
b
in paragraph 2—
i
after “1996” for “or” substitute “,”; and
ii
after “the Family Proceedings Rules 1991” insert “or the Family Procedure Rules 2010”.
Amendment of the Data Protection (Miscellaneous Subject Access Exemptions) Order 200025
In Part II of the Schedule to the Data Protection (Miscellaneous Subject Access Exemptions) Order 200017—
a
at the end of paragraph (a) insert—
In the Family Procedure Rules 201018: rules 14.6, 14.11, 14.12, 14.13, 14.14, 14.24, 16.20 (insofar as it applies to a children’s guardian appointed in proceedings to which Part 14 of those Rules applies), 16.32 and 16.33 (insofar as it applies to a children and family reporter in proceedings to which Part 14 of those Rules applies).
b
at the end of paragraph (c) insert—
Rules made under section 75 of the Courts Act 2003 by virtue of section 141(1) of the Adoption and Children Act 2002, as applied with modifications by regulation 2 of Schedule 1 to the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, so far as the rules relate to the appointment and duties of the parental order reporter and the keeping of registers, custody, inspection and disclosure of documents and information relating to parental order proceedings or related proceedings.
Amendment of the Divorce etc (Pensions) Regulations 2000
26
The Divorce etc (Pensions) Regulations 200019 are amended as provided in articles 27 and 28.
27
In regulation 2(d), for “Family Proceedings Rules 1991” substitute “Family Procedure Rules 201020”.
28
In regulation 4(3)(c), 6(2)(a) and (4), 7(3) and 7A(3), for “rule 2.70” substitute “rule 9.33 or 9.34”.
Amendment of the Litigants in Person (Costs and Expenses) (Magistrates’ Courts) Order 200129
In article 3 of the Litigants in Person (Costs and Expenses) (Magistrates’ Courts) Order 200121, after “1980” insert “or under section 75 of the Courts Act 2003”.
Amendment of the Dissolution etc (Pensions) Regulations 2005
30
The Dissolution etc (Pensions) Regulations 200522 are amended as provided in articles 31 and 32.
31
In regulation 2(e) for “Family Proceedings Rules 1991” substitute “Family Procedure Rules 201023”.
32
In regulations 4(3)(c), 6(2)(a) and (4), 7(3) and 7A(3), for “rule 2.70” substitute “rule 9.33 or 9.34”.
Amendment of the Court of Protection Rules 200733
In rule 39 of the Court of Protection Rules 200724—
a
in paragraph (1), for “The rules in Section 2 of Part 6 of the Family Procedure (Adoption) Rules 2005 (“the 2005 Rules”)”, substitute “The rules in Chapter 4 of Part 6 of the Family Procedure Rules 201025 (“the 2010 Rules”)”; and
b
in paragraphs (2) and (3), for “2005” substitute “2010”.
Amendment of the Family Proceedings Fees Order 2008
34
The Family Proceedings Fees Order 200826 is amended as provided in articles 35 to 37.
35
For article 1(2)(b), substitute—
b
“the FPR 2010” means the Family Procedure Rules 201027; and
c
expressions also used in the FPR 2010 have the same meaning as in the FPR 2010.
36
In column 1 of Schedule 1—
a
for the description of fee 1.1 substitute—
On filing an application to start proceedings, where no other fee is specified.
b
for the description of fee 1.2 substitute—
On presenting any application for—
a
a matrimonial or civil partnership order, other than an application to which rule 7.7(1)(b) of the FPR 2010 applies;
b
a declaration to which Chapter 5 of Part 8 of the FPR 2010 applies.
c
for the description of fee 1.4 substitute—
On amending an application for a matrimonial or civil partnership order, amending an application for a declaration to which Chapter 5 of Part 8 of the FPR 2010 applies, or making an application to which rule 7.7(1)(b) of the FPR 2010 applies.
d
for the description of fee 1.5 substitute—
On filing an answer to an application for a matrimonial or civil partnership order.
e
for the description of fee 4.2 substitute—
On an application under rule 7.19 of the FPR 2010 for the court to consider the making of a decree nisi, a conditional order, a decree of judicial separation or a separation order (other than in an undefended case where no fee is payable).
f
for the description of fee 4.4 substitute—
On the filing of—
a
a notice of intention to proceed with an application for a financial order to which rule 9.4(a) of the FPR 2010 applies; or
b
an application for a financial order to which rule 9.4(b) of the FPR 2010 applies,
other than an application for a consent order.
g
in the description of fee 5.1, for “a notice of appeal” substitute “an appeal notice”;
h
in the description of fee 10.1, after “enforcement of a judgment” insert “, or on an application to which rule 33.3(2)(b) of the FPR 2010 applies”; and
i
in the description of fee 10.2, for “garnishee order” substitute “third party debt order”.
37
In paragraph 1(1) of Schedule 2, in the definition of “restraint order”—
a
in paragraph (a) omit “or”;
b
in paragraph (b), for “.” substitute “; or”; and
c
after paragraph (b) insert—
c
a civil restraint order under rule 4.8 of the FPR 2010 or the practice direction referred to in that rule.
Amendment of the Allocation and Transfer of Proceedings Order 200838
In article 15(1) of the Allocation and Transfer of Proceedings Order 200828, omit sub-paragraph (h).
PART 4MISCELLANEOUS
Transitional provision39
Where, by virtue of Part 36 of the Family Procedure Rules 201029, the Family Procedure Rules 2010 do not apply to a particular case, the enactments referred to in articles 2 to 14, 17 to 19, 26 to 28 and 30 to 38 shall apply as if the amendments made to those enactments by this Order had not been made.
Signed
(This note is not part of the Order)