The Family Procedure (Modification of Enactments) Order 2011

PART 3AMENDMENTS TO PRIMARY LEGISLATION

Amendment of the Courts Act 1971

3.  In section 52 of the Courts Act 1971(1), 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(2)).”

Amendment of the Magistrates’ Courts Act 1980

4.  The Magistrates’ Courts Act 1980 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(3)—

(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 “subsection (1) or (4A)”; and

(d)after subsection (4) insert—

“(4A) Subject to the provisions of any other enactment, 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—

“65A    Meaning of family procedure rules

In this Act, “Family Procedure Rules” means rules made under section 75 of the Courts Act 2003(4).”.

12.  After section 68(5) insert—

“68A    Power 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 97(6), in subsections (1)(a) and (2) for “under the Adoption and Children Act 2002 (c 38)” substitute “in family proceedings”.

14.  In section 150(7) before the definition of “family proceedings” insert—

“Family Procedure Rules” has the meaning assigned by section 65A above;”.

Amendment of the Sexual Offences Act 2003

15.  In section 21(12) of the Sexual Offences Act 2003(8)—

(a)at the end of 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),”.