The Magistrates’ Courts (Enforcement or Variation of Orders Made in Family Proceedings and Miscellaneous Provisions) Rules 2011

PART 1INTRODUCTORY

Citation and commencement

1.  These Rules may be cited as the Magistrates’ Courts (Enforcement or Variation of Orders Made in Family Proceedings and Miscellaneous Provisions) Rules 2011 and shall come into force on 18th June 2011.

Interpretation

2.  In these Rules—

“the 1950 Act” means the Maintenance Orders Act 1950(1);

“the 1958 Act” means the Maintenance Orders Act 1958(2);

“the 1972 Act” means the Maintenance Orders (Reciprocal Enforcement) Act 1972(3);

“the 1980 Act” means the Magistrates’ Courts Act 1980;

“the 1986 Act” means the Family Law Act 1986(4);

“the 1989 Act” means the Children Act 1989(5);

“the 1996 Act” means the Family Law Act 1996(6);

“the FPR” means the Family Procedure Rules 2010(7);

“designated officer” has the meaning given in section 37(1) of the Courts Act 2003(8);

“justices’ clerk” has the meaning given in section 27(1) of the Courts Act 2003(9);

“legal representative” means a—

who has been instructed to act for a party in relation to proceedings;

“the Forms Practice Direction” means the practice direction issued by the Lord Chief Justice listing the forms to be used in relation to the matters to which provisions in these Rules relate;

“the register” means the register kept in accordance with rule 66 of the Magistrates’ Courts Rules 1981(12); and

“statement of truth” means a statement as follows “[I believe] [the applicant believes] that the facts stated in this document are true.”.

Application of these Rules

3.—(1) These Rules apply to the proceedings referred to in rules 4 to 81 in a magistrates’ court.

(2) Nothing in these Rules is to be construed as conferring upon a magistrate a function which a magistrate is not permitted by statute to perform.

PART 2GENERAL PROVISION

CHAPTER 1PROCEEDINGS WHERE THE FPR ARE NOT APPLIED

Application of this Chapter

4.  This Chapter applies in respect of Parts 3 and 4, rule 54, Chapter 2 of Part 5 and rules 73, 77 and 79.

The overriding objective

5.—(1) The provisions to which this Part applies have the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2) Dealing with a case justly includes, so far as is practicable—

(a)ensuring that it is dealt with expeditiously and fairly;

(b)dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c)ensuring that the parties are on an equal footing;

(d)saving expense; and

(e)allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

Application by the court of the overriding objective

6.  The court must seek to give effect to the overriding objective when it—

(a)exercises any power given to it by the provisions to which this Part applies; or

(b)interprets any such provision.

Duty of the parties

7.  The parties are required to help the court to further the overriding objective.

Court’s duty to manage cases

8.—(1) The court must further the overriding objective by actively managing cases.

(2) Active case management includes—

(a)encouraging the parties to co-operate with each other in the conduct of the proceedings;

(b)identifying at an early stage—

(i)the issues; and

(ii)who should be a party to the proceedings;

(c)deciding promptly—

(i)which issues need full investigation and hearing and which do not; and

(ii)the procedure to be followed in the case;

(d)deciding the order in which issues are to be resolved;

(e)encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;

(f)helping the parties to settle the whole or part of the case;

(g)fixing timetables or otherwise controlling the progress of the case;

(h)considering whether the likely benefits of taking a particular step justify the cost of taking it;

(i)dealing with as many aspects of the case as it can on the same occasion;

(j)dealing with the case without the parties needing to attend at court;

(k)making use of technology; and

(l)giving directions to ensure that the case proceeds quickly and efficiently.

The court’s general powers of management

9.—(1) In this rule—

“disclosure” means stating that a document exists or has existed;

“hearing” includes a directions appointment;

“inspection” of a document occurs when a party is permitted to inspect a document disclosed by another person.

(2) For the purposes of the references to disclosure and inspection in this rule—

“document” means anything in which information of any description is recorded; and

“copy” in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.

(3) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(4) Except where any provision to which this rule applies provides otherwise, the court may—

(a)extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

(b)make such order for disclosure and inspection, including specific disclosure of documents, as it thinks fit;

(c)adjourn or bring forward a hearing;

(d)require a party or a party’s legal representative to attend the court;

(e)hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

(f)direct that part of any proceedings be dealt with as separate proceedings;

(g)consolidate proceedings;

(h)hear two or more applications on the same occasion;

(i)direct a separate hearing of any issue;

(j)decide the order in which issues are to be heard;

(k)exclude an issue from consideration;

(l)dismiss or give a decision on an application after a decision on a preliminary issue;

(m)direct any party to file and serve an estimate of costs; and

(n)take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

(5) When the court makes an order, it may—

(a)make it subject to conditions, including a condition to pay a sum of money into court; and

(b)specify the consequences of failure to comply with the order or a condition.

(6) Where the court gives directions, it will take into account whether or not a party has complied with any relevant pre-action protocol (being a statement of best practice about pre-action conduct which has been approved by the Lord Chief Justice and which is annexed to a practice direction).

(7) A power of the court under the provisions to which this Part applies to make an order includes a power to vary or revoke the order.

(8) Any provision to which this Part applies—

(a)requiring or permitting directions to be given by the court is to be taken as including provision for such directions to be varied or revoked; and

(b)requiring or permitting a date to be set is to be taken as including provision for that date to be changed or cancelled.

Designated officer’s power to refer to the court

10.  Where in any provision to which this Part applies a step is to be taken by a designated officer the designated officer may consult the court before taking that step.

General power of the court to rectify matters where there has been an error of procedure

11.  Where there has been an error of procedure such as a failure to comply with a rule or a practice direction—

(a)the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b)the court may make an order to remedy the error.

Forms

12.—(1) The forms referred to in the provisions to which this Chapter applies and in the Forms Practice Direction must be used in the cases to which they apply.

(2) A form may be varied by the court or a party if the variation is required by the circumstances of a particular case.

(3) A form must not be varied so as to leave out any information or guidance which the form gives to the recipient.

(4) Where the provisions to which this Part applies require a form to be sent by the court or by a party for another party to use, it must be sent without variation except such as is required by the circumstances of the particular case.

Documents to be attached to a form

13.  Subject to any provision to which this Part applies, unless the court directs otherwise, a form must have attached to it any documents which, in the form, are—

(a)stated to be required; or

(b)referred to.

Power of the single justice to perform functions conferred on the court by rules 4 to 13

14.  Where—

(a)by virtue of section 65 of the 1980 Act the proceedings are treated by the court as family proceedings; and

(b)rules 4 to 13 provide for a court to perform any function,

that function may be performed by a single justice of the peace except that such a justice cannot perform the functions referred to in rule 9(4)(k) and (l), 9(5)(a) and 9(6).

Power of a justices’ clerk to perform functions conferred on the court by rules 4 to 13

15.  Where rules 4 to 13 provide for a court to perform any function, that function may be performed by a justices’ clerk except that such a justices’ clerk cannot perform the functions referred to in rule 9(4)(k) and (l).

(Provision in respect of the enforcement of a magistrates’ court maintenance order, or an order enforceable as a magistrates’ court maintenance order is made in the Magistrates’ Courts Rules 1981.)

CHAPTER 2PROCEEDINGS WHERE THE FPR ARE APPLIED

Application of this Chapter

16.  This Chapter applies in respect of rules 50 to 53, 69, 71, 74 to 76, 78 and 80.

Power of the single justice where the FPR are applied

17.  Where proceedings are not treated by the court as family proceedings by virtue of section 65 of the 1980 Act, rule 2.5 of the FPR will not apply in respect of the powers of the single justice.

Power of a justices’ clerk where the FPR are applied

18.—(1) Subject to the Justices’ Clerks Rules 2005(13), a justices’ clerk may perform all the functions which a single justice may perform in accordance with rule 2.5(1)(c)(ii) of the FPR.

(2) Where a justices’ clerk—

(a)is performing the function of a single justice in accordance with paragraph (1); and

(b)considers, for whatever reason, that it is inappropriate to perform the function,

the justices’ clerk must refer the matter to the magistrates’ court which may perform the function.

(3) Paragraph (1) applies irrespective of whether proceedings are treated by the court as family proceedings by virtue of section 65 of the 1980 Act.

CHAPTER 3ALL PROCEEDINGS TO WHICH THESE RULES APPLY

Delegation by justices’ clerk

19.—(1) Anything authorised to be done by, to or before a justices’ clerk under these Rules may be done instead by, to or before an assistant clerk where the assistant clerk has been specifically authorised in writing by the justices’ clerk for that purpose.

(2) In this rule “assistant clerk” has the meaning assigned to it by section 27 of the Courts Act 2003.

PART 3PROCEEDINGS UNDER THE 1950 ACT

CHAPTER 1INTERPRETATION OF THIS PART

Interpretation

20.—(1) In this Part—

“appropriate officer of the High Court” means the District Judge of the Principal Registry of the Family Division of the High Court or the district judge of the relevant district registry;

“certified copy” means a copy order certified by the designated officer of the court to be a true copy of the order or of the official record of the order; and

“maintenance order” has the meaning assigned in section 16(2) of the 1950 Act(14).

(2) References in Chapter 3 of this Part to the clerk of the court by which the order was made are to be construed, in relation to a maintenance order made by a county court in Northern Ireland, as references to the Chief Clerk for the appropriate county in Northern Ireland.

CHAPTER 2MAINTENANCE ORDERS MADE BY A MAGISTRATES’ COURT IN ENGLAND AND WALES

Procedure under Part 2 of the 1950 Act in relation to a maintenance order made by a magistrates’ court in England and Wales

21.—(1) An application under Part 2 of the 1950 Act for the registration in a court in Scotland or Northern Ireland of a maintenance order made by a magistrates’ court in England and Wales—

(a)may be made either orally or in writing; and

(b)must be made to a justice or justices acting in the same place as the court which made the order.

(2) Unless the applicant appears in person, the applicant must file with the court a document verified by a statement of truth signed by the applicant or the applicant’s legal representative which states—

(a)the address of the person liable to make payments under the order;

(b)the reason why it is convenient that the order should be enforced in Scotland or Northern Ireland, as the case may be;

(c)unless a certificate of arrears is lodged under section 20 of the 1950 Act, the amount of any arrears due under the order;

(d)that the order is not already registered under Part 2 of the 1950 Act.

(3) If it appears to the justice that the person liable to make payments under the order resides in Scotland or Northern Ireland and that it is convenient that the order should be enforceable there, the designated officer for the court which made the order will send to the sheriff-clerk of the sheriff court in Scotland or to the clerk of the court of summary jurisdiction in Northern Ireland (as the case may be) having jurisdiction in the place in which the person liable to make payments under the order appears to be—

(a)a certified copy of the order;

(b)the certificate of arrears or the document referred to in paragraph (2) (if there is any such document);

(c)if no document referred to in paragraph (2) has been lodged, written notice of the address of the person liable to make payments under the order.

(4) A memorandum of any proceedings taken under paragraph (1) must be entered in the register.

(5) The designated officer for the court which made the order must, on receipt of notice under section 17(4)(15) of the 1950 Act of the registration of the order, enter a memorandum of that notice in the register.

(6) The designated officer for the court which made the order is the prescribed officer for the purposes of section 17(4) of the 1950 Act.

Application under section 22 of the 1950 Act to adduce evidence: maintenance order made by a magistrates’ court in England and Wales

22.—(1) An application to a magistrates’ court in England and Wales under section 22(5) of the 1950 Act to adduce evidence in connection with a maintenance order made by that court and registered in a court in Scotland or Northern Ireland may be made orally.

(2) The application may be made, and the proceedings heard, without notice to the respondent.

(3) The court in which the application is made must ensure that a transcript or summary of any evidence taken is sent to the clerk of the court in which the order is registered.

(4) The designated officer for the court in England and Wales which made the maintenance order will be the prescribed officer to whom any transcript or summary of evidence adduced in the court in Scotland or Northern Ireland under section 22(5) of the 1950 Act must be sent.

Variation of a maintenance order made by a magistrates’ court in England and Wales: section 22(1) of the 1950 Act

23.—(1) Where a maintenance order made by a magistrates’ court in England and Wales and registered in a court in Scotland or Northern Ireland is varied under section 22(1) of the 1950 Act (16)by the court in which it is registered—

(a)the designated officer for the court which made the order will be the prescribed officer to whom, under section 23(1) of the 1950 Act(17), notice of the variation must be given;

(b)on receipt of a notice under section 23(1) of the 1950 Act, the designated officer must enter a memorandum of that notice in the register.

(2) Where a maintenance order made by a magistrates’ court in England and Wales and registered in a court in Scotland or Northern Ireland is discharged or varied by the court which made it, the designated officer for the court which made the order must give notice of the discharge or variation to the clerk of the court in which the order is registered by sending a certified copy of the order discharging or varying the maintenance order.

Cancellation of registration of a maintenance order made by a magistrates’ court in England and Wales: section 24 of the 1950 Act

24.—(1) An application under section 24(2) of the 1950 Act(18) for the cancellation of the registration of a maintenance order made by a magistrates’ court in England and Wales and registered in a court in Scotland or in Northern Ireland—

(a)may be made orally or in writing by the person liable to make the payments under the order; and

(b)must be made to a justice acting in the same place as the court which made the order.

(2) Unless the applicant appears in person, the applicant must file with the court a document verified by a statement of truth signed by the applicant or the applicant’s legal representative stating the facts relied upon in support of the application.

(3) If it appears to the justice dealing with the application that the person liable to make payments under the order has ceased to reside in Scotland or Northern Ireland (as the case may be), the designated officer for the court which made the order must send notice to that effect to the clerk of the court in which the order is registered.

(4) On the cancellation of the registration of an order, the designated officer for the court in England and Wales which made the order is the prescribed officer to whom, under section 24(3)(a) of the 1950 Act(19), notice of the cancellation must be given.

(5) On receipt of notice of the cancellation of the registration of an order, the designated officer must enter a memorandum of that notice in the register.

CHAPTER 3MAINTENANCE ORDERS REGISTERED IN A MAGISTRATES’ COURT IN ENGLAND AND WALES

Procedure under Part 2 of the 1950 Act in relation to a maintenance order made by a court in Scotland or Northern Ireland

25.—(1) The designated officer for the magistrates’ court specified in section 17(3)(b) of the 1950 Act will be the prescribed officer for the purpose of section 17(2) of the 1950 Act.

(2) On receipt, further to section 17 of the 1950 Act, of a certified copy of a maintenance order made by a court in Scotland or Northern Ireland, the designated officer must—

(a)enter a memorandum of that order in the register; and

(b)send written notice that the order has been so registered to the clerk of the court by which the order was made.

Payments in respect of a maintenance order registered in a magistrates’ court in England and Wales

26.—(1) This rule applies where in exercise of—

(a)the duty imposed by section 19(2) of the 1950 Act; or

(b)the powers conferred by section 18(2ZA)(20) or 22(1A) or (1E)(21) of the 1950 Act,

a magistrates’ court in England and Wales orders that payments under a maintenance order registered in that court are to be made by a particular means.

(2) The justices’ clerk must record on a copy of the order the means of payment which the court has ordered.

(3) As soon as practicable, the designated officer must notify in writing the person liable to make payments under the order of how payments are to be made.

(4) Where the court orders payment to the designated officer for the court, or to the designated officer for any other magistrates’ court, by a method of payment falling within section 59(6) of the 1980 Act (standing order etc.), the designated officer to whom payments are to be made must notify the person liable to make the payments under the order of sufficient details of the account into which the payments should be made to enable payments to be made into that account.

(5) Where, under section 60(4) of the 1980 Act(22) as modified by section 22(1E) of the 1950 Act, the court receives an application from an interested party for the method of payment to be varied—

(a)the designated officer must, as soon as practicable, notify in writing that interested party and, where practicable, any other interested party, of the result of the application, including any decision to refer the matter to the court; and

(b)where the justices’ clerk grants the application, the justices’ clerk must record the variation on a copy of the order.

Application under section 21(2) of the 1950 Act to adduce evidence: maintenance order made by the Court of Session and registered in a magistrates’ court in England and Wales

27.—(1) An application to a magistrates’ court under section 21(2) of the 1950 Act to adduce evidence in connection with a maintenance order made by the Court of Session and registered in the magistrates’ court under Part 1 of the 1958 Act by virtue of section 1(2) of that Act(23) may be made orally.

(2) The complaint may be made, and the proceedings heard, without notice to the respondent.

(3) The court in which the application is made must ensure that a transcript or summary of any evidence taken is sent to the Deputy Principal Clerk of Session.

Variation of a maintenance order registered in a magistrates’ court in England and Wales: section 22(1) of the 1950 Act

28.—(1) An application under section 22(1) of the 1950 Act for the variation of the rate of the payments under a maintenance order registered under Part 2 of the 1950 Act in a magistrates’ court in England and Wales must be made by way of complaint in accordance with the 1980 Act.

(2) When the complaint is made, a summons may be issued directed to any person to whom the justice to whom the complaint is made may consider proper to answer it.

(3) Where the maintenance order is varied, the designated officer must—

(a)give notice of the variation to the clerk of the court in Scotland or Northern Ireland by which the order was made; and

(b)if the order is registered in the High Court under Part 1 of the 1958 Act by virtue of section 1(2) of that Act, give notice of the variation to the appropriate officer of the High Court,

by sending to the clerk of the court and, where necessary, the appropriate officer of the High Court, a certified copy of the order of variation.

(4) Where a maintenance order registered under Part 2 of the 1950 Act in a magistrates’ court is discharged or varied by any other court, the designated officer for the court in which it is registered will be the prescribed officer to whom, under section 23(1)(a) of the 1950 Act, notice of the discharge or variation must be given.

(5) On receipt of a certified copy of an order discharging or varying the registered order, the designated officer must enter a memorandum of that order in the register.

Application under section 22(5) of the 1950 Act to adduce evidence: maintenance order registered in England and Wales

29.—(1) An application to a magistrates’ court in England and Wales under section 22(5) of the 1950 Act to adduce evidence in connection with a maintenance order registered in that court may be made orally.

(2) The application may be made, and the proceedings heard, without notice to the respondent.

(3) The court in which the application is made must ensure that a transcript or summary of any evidence taken is sent to the clerk of the court in Scotland or Northern Ireland by which the order was made.

(4) The designated officer for the court in England and Wales in which the maintenance order is registered will be the prescribed officer under section 22(5) of the 1950 Act to whom any transcript or summary of evidence adduced in the court in Scotland or Northern Ireland by which the order was made must be sent.

Cancellation of registration of a maintenance order registered in a magistrates’ court in England and Wales: section 24 of the 1950 Act

30.—(1) An application under section 24(1) of the 1950 Act for the cancellation of the registration of a maintenance order registered under Part 2 of the 1950 Act in a magistrates’ court in England and Wales must—

(a)be made to the designated officer for the court in which the maintenance order is registered;

(b)be made in writing and state the date of the registration of the order; and

(c)have attached to it a copy of the order the registration of which it is sought to cancel.

(2) Where the designated officer cancels the registration of the maintenance order, the designated officer must send written notice of the cancellation—

(a)to the clerk of the court by which the order was made; and

(b)where the order is registered in the High Court under Part 1 of the 1958 Act by virtue of section 1(2) of that Act, to the appropriate officer of the High Court.

(3) Where a maintenance order is registered under Part 2 of the 1950 Act in a magistrates’ court in England and Wales, the designated officer for the court in which the order is registered will be the prescribed officer to whom notice must be sent under section 24(2) of the 1950 Act(24) that the person liable to make the payments under the order has ceased to reside in England and Wales.

(4) On receipt of a notice referred to in paragraph (3), the designated officer must—

(a)cancel the registration of the order; and

(b)send written notice of the cancellation to—

(i)the clerk of the court by which the order was made; and

(ii)where the order is registered in the High Court under Part 1 of the 1958 Act by virtue of section 1(2) of that Act, to the appropriate officer of the High Court.

(5) Where the designated officer for a magistrates’ court in which a maintenance order is registered under Part 1 of the 1958 Act receives a notice of cancellation under section 24(3) of the 1950(25) Act from the appropriate officer of the High Court, the designated officer must—

(a)ensure that the particulars of the notice are entered in the register;

(b)cancel the registration under Part 1 of the 1958 Act; and

(c)give notice of the cancellation to, the appropriate officer of the court in Scotland or Northern Ireland which made the order, being—

(i)the Deputy Principal Clerk of Session, in the case of the Court of Session; or

(ii)the Chief Registrar of the Queen’s Bench Division (Matrimonial), in the case of the High Court of Justice in Northern Ireland.

CHAPTER 4FORMS

Notices under section 19(4) of the 1950 Act

31.—(1) A notice under section 19(4) of the 1950 Act that the payments under a maintenance order made by a sheriff court in Scotland or a court of summary jurisdiction in Northern Ireland have become payable through or to any officer or person will be in the form number 1 in Schedule 1.

(2) The notice referred to in paragraph (1) must be sent by recorded delivery by the designated officer to the person liable to make the payments under the order at that person’s last known address.

(3) A notice under section 19(4) of the 1950 Act that the payments under a maintenance order made by a magistrates’ court in England and Wales have, on its registration under Part 2 of the 1950 Act in a court in Scotland or Northern Ireland, ceased to be payable through or to any officer or person will be in the form number 2 in Schedule 1.

(4) The notice referred to in paragraph (3) must be sent by recorded delivery by the designated officer for the court in England and Wales to the person liable to make payments under the order at that person’s last known address.

Certificates under section 20(1) of the 1950 Act

32.  A certificate lodged under section 20(1) of the 1950 Act as to the amount of any arrears due under a maintenance order made by a magistrates’ court in England and Wales will be in the form number 3 in Schedule 1.

Notices under section 24 of the 1950 Act

33.—(1) A notice under section 24(5) or (5A) of the 1950 Act(26) of the cancellation of the registration under Part 2 of the 1950 Act of a maintenance order in a magistrates’ court in England and Wales will be in the form number 4 in Schedule 1.

(2) The notice referred to in paragraph (1) must be sent by recorded delivery by the designated officer for the court which cancelled the registration to the person liable to make the payments under the order at that person’s last known address.

PART 4PROCEEDINGS UNDER THE 1958 ACT

CHAPTER 1INTERPRETATION OF THIS PART

Interpretation

34.—(1) Section 1(3) of the 1958 Act applies to the interpretation of Chapter 2 of this Part as it applies to the interpretation of Part 1 of the 1958 Act.

(2) Section 21 of the 1958 Act(27) applies to the interpretation of this Part as it applies to the interpretation of the 1958 Act.

(3) In this Part, “appropriate officer of the original court” means—

(a)the Sheriff-clerk, in the case of a sheriff court in Scotland;

(b)the clerk of petty sessions, in the case of a magistrates’ court in Northern Ireland;

(c)the Deputy Principal Clerk of Session, in the case of the Court of Session;

(d)the Chief Registrar of the Queen’s Bench Division (Matrimonial), in the case of the High Court of Justice in Northern Ireland.

(4) In this Part any reference to “the administering court” in relation to a maintenance order is a reference to the magistrates’ court—

(a)which made the maintenance order;

(b)in which the maintenance order is registered under the 1958 Act, under Part 2 of the 1950 Act or under the Maintenance Orders (Facilities for Enforcement) Act 1920(28); or

(c)by which the maintenance order was confirmed under the Maintenance Orders (Facilities for Enforcement) Act 1920.

CHAPTER 2PROCEDURE UNDER PART 1 OF THE 1958 ACT

Applications for registration under section 2(3) of the 1958 Act

35.  An application under section 2(3) of the 1958 Act(29) for the registration in the High Court of a magistrates’ courts order need not be in writing or on oath.

Manner in which a magistrates’ court is to be satisfied as to various matters

36.—(1) An applicant wishing to show, in accordance with section 2A(1) of the 1958 Act(30), that—

(a)the order to which the application relates, though deemed to have been made by a magistrates’ court in England and Wales, was in fact made in another part of the United Kingdom or a country or territory outside the United Kingdom; and

(b)by the law of that part or of that country or territory, interest is recoverable under the order,

may do so by producing the original court order or an authenticated copy of that order showing the date or time from which, and the rate at which, interest is so recoverable.

(2) For the purposes of paragraph (1), a copy is deemed to be authenticated if it purports to be certified by a judge or official of the court which made the original order to be a true copy of the original order, but it is not necessary to prove the signature or official position of the person appearing to have given such a certificate.

(3) Where an application for the registration in the High Court of a magistrates’ court order is granted, the court must be satisfied in the manner provided by paragraph (5) that no process for the enforcement of the order issued before the grant of the application remains in force.

(4) Where the court receives notice under section 5 of the 1958 Act(31), the court must be satisfied in the manner provided by paragraph (5) that no process for the enforcement of the order issued before the giving of the notice remains in force and that no proceedings for the variation of the order are pending in a magistrates’ court.

(5) For the purpose of satisfying the court as to the matters referred to in paragraphs (3) and (4)—

(a)if the person through or to whom payments are ordered to be made is the designated officer for a magistrates’ court, a certificate signed by the designated officer must be produced;

(b)in any other case, a document verified by a statement of truth from a Justice of the Peace must be produced.

Receipt by a magistrates’ court of a notice of registration in the High Court of an order previously registered in a magistrates’ court

37.  Where a magistrates’ court receives from the High Court notice of the registration in the High Court of an order made by a sheriff court in Scotland or a court of summary jurisdiction in Northern Ireland and previously registered in the magistrates’ court in accordance with section 17(4) of the 1950 Act, the designated officer for the court will enter the particulars of such a notice in the register.

Copy of a magistrates’ court order sent to the High Court for registration

38.—(1) Where—

(a)an application for the registration of a magistrates’ court order is granted; and

(b)the court is satisfied that no process issued for the enforcement of the order before the grant of the application remains in force,

the court will, in accordance with section 2(4)(c) of the 1958 Act, direct the designated officer to send a copy of the order, which is certified to be a true copy, to the appropriate officer of the High Court.

(2) Where the court is satisfied in accordance with rule 36 that interest is recoverable under the order in respect of which the application has been granted, the court will, in accordance with section 2A(1) of the 1958 Act, direct the designated officer to send, together with the certified copy of the order mentioned in paragraph (1), a certificate in respect of the interest so recoverable in the form numbered 1 in Schedule 2 to the appropriate officer of the High Court.

Registration of a High Court or county court order in a magistrates’ court

39.  Where a designated officer for a magistrates’ court, in accordance with section 2(2)(b) of the 1958 Act(32), receives from a court officer of the High Court or the county court a certified copy of a High Court or county court order, the designated officer will—

(a)register the order in the designated officer’s court by means of a memorandum in the register; and

(b)send written notice to the court officer of the High Court or the county court (as the case may be) that the order has been registered.

Registration in a magistrates’ court of an order made in the Court of Session or in the High Court in Northern Ireland

40.  Where a designated officer for a magistrates’ court, in accordance with section 2(2)(b) of the 1958 Act, receives from the appropriate officer of the original court in Scotland or Northern Ireland a certified copy of an order made by the Court of Session or by the High Court in Northern Ireland, the designated officer will—

(a)register the order in the designated officer’s court by means of a memorandum in the register; and

(b)send written notice to the appropriate officer of the High Court and to the appropriate officer of the original court that the order has been registered.

Notices: payments made through a designated officer

41.—(1) A notice under section 2(6ZC)(33) of the 1958 Act that the payments under a High Court or county court order or an order made by the Court of Session or by the High Court in Northern Ireland have, on its registration in a magistrates’ court, become payable through the designated officer for a magistrates’ court will be given by the designated officer for the court of registration in the form numbered 2 in Schedule 2.

(2) Paragraphs (3) and (4) apply in relation to a notice under section 2(6ZC) of the 1958 Act that payments under—

(a)a magistrates’ court order; or

(b)an order which is registered in a magistrates’ court under Part 2 of the 1950 Act and which was made by—

(i)a sheriff court in Scotland; or

(ii)a court of summary jurisdiction in Northern Ireland,

have, on the registration of the order in the High Court, ceased to be payable to a designated officer for a magistrates’ court.

(3) The notice must be—

(a)given by the designated officer for the administering court; and

(b)in form numbered 3 in Schedule 2.

(4) Where payments have been made through a designated officer other than the designated officer for the administering court, the designated officer for the administering court must send a copy of the notice to the designated officer through whom payments have been made.

(5) Paragraphs (6) and (7) apply in relation to a notice under section 5(5)(b) of the 1958 Act that the registration in a magistrates’ court of an order of the High Court, a county court, the Court of Session or the High Court in Northern Ireland has been cancelled and that payments under the order have ceased to be payable through a designated officer for a magistrates’ court.

(6) The notice must be—

(a)given by the designated officer for the court of registration; and

(b)be in the form numbered 4 in Schedule 2.

(7) Where payments have been payable through a designated officer other than the designated officer for the court of registration, the designated officer for the court of registration must send a copy of the notice to the designated officer through whom payments have been payable.

(8) A notice given in accordance with this rule must be served personally on to the person liable to make payments under the order to which the notice relates or sent by post to that person at that person’s last known address.

Method of payment

42.—(1) This rule applies where the court exercises its duties or powers under section 2(6ZA), 3(2A) or (2B) or 4(2A), (5A) or (5B) of the 1958 Act(34).

(2) Where the court orders that payments under a registered order are to be made by a particular means—

(a)the justices’ clerk will record on a copy of the order the means of payment which the court has ordered; and

(b)as soon as practicable, the designated officer will notify in writing the person liable to make payments under the order, how payments are to be made.

(3) Paragraph (4) applies where the court orders that payments be made—

(a)by the debtor to the creditor;

(b)by the debtor to the designated officer for the court; or

(c)to the designated officer for any other court,

by a method of payment falling within section 59(6) of the 1980 Act.

(4) The designated officer to whom payments are to be made must notify the person liable to make payments under the order of sufficient details of the account into which the payments should be made to enable payments to be made into that account.

Variation of method of payment

43.—(1) This rule applies where, under section 60(4) of the 1980 Act as applied by section 4(5A) of the 1958 Act or as modified by section 4(5B) of the 1958 Act, the designated officer receives an application from an interested party for the method of payment to be varied.

(2) The designated officer must as soon as practicable notify in writing the interested party who made the application and, where practicable, any other interested party, of the result of the application including any decision to refer the matter to the court.

(3) Where the justices’ clerk grants the application, the justices’ clerk must record the variation on a copy of the order.

Notice of variation, remission, discharge or cancellation of registration by a magistrates’ court of a registered order

44.—(1) Where, under section 4(2) of the 1958 Act(35), a High Court or county court order registered in a magistrates’ court is varied by a magistrates’ court, the designated officer for the magistrates’ court making the variation must give notice of the variation to the High Court or county court, as the case may be.

(2) Where, under section 4(4) of the 1958 Act, an application for the variation of a High Court or county court order registered in a magistrates’ court is remitted to the original court by a magistrates’ court, the designated officer for the remitting court must give notice of the remission to the High Court or county court, as the case may be.

(3) Where, under section 5(4) of the 1958 Act, the registration of a High Court or county court order in a magistrates’ court is cancelled by the court of registration, the designated officer for the court of registration must give notice of cancellation to the High Court or county court, as the case may be, stating (if applicable) that the cancellation is in consequence of a notice given under section 5(1) of the 1958 Act.

(4) Where under section 5(4) of the 1958 Act the registration in a magistrates’ court of an order made in the Court of Session or the High Court in Northern Ireland is cancelled by that magistrates’ court, the designated officer for that magistrates’ court must give notice of the cancellation to—

(a)the appropriate officer of the original court; and

(b)where the order is registered by virtue of Part 2 of the 1950 Act, to the appropriate officer of the High Court.

(5) Where under section 5(4) of the 1958 Act(36) the registration in a magistrates’ court of an order under Part 2 of the 1950 Act is cancelled by that magistrates’ court, the designated officer for that magistrates’ court must give notice of the cancellation to—

(a)the appropriate officer of the original court; and

(b)where the order is registered under Part 1 of the 1958 Act, to the appropriate officer of the High Court.

(6) Where a magistrates’ court order registered in the High Court is varied or discharged by a magistrates’ court, the designated officer for the magistrates’ court which varies or discharges the order must give notice of the variation or discharge to the High Court.

(7) Notice under this rule will be given by sending to the appropriate officer of the High Court or the registrar of the county court (as the case may be) a copy of the order in question, certified to be a true copy by the designated officer for the magistrates’ court.

(8) For the purposes of this rule, the appropriate officer of the High Court will be—

(a)in relation to a High Court order registered in a magistrates’ court, the officer to whom notice of registration was given under rule 39; or

(b)in relation to a magistrates’ court order registered in the High Court, the officer to whom a copy of the order was sent under rule 38.

(9) In the case of a High Court maintenance order, the notice referred to in paragraph (6) must be marked with the title and case number, if any.

(10) In the case of a county court maintenance order, any notice referred to in this rule must be marked with the complaint or application number.

(11) Where a magistrates’ court order registered in the High Court is discharged by a magistrates’ court and it appears to the magistrates’ court ordering the discharge that no arrears remain to be recovered, notice under section 5(3) of the 1958 Act(37) must be given by an endorsement on the certified copy of the order of discharge referred to in paragraph (7).

Notices received from the High Court or a county court or from a person entitled to payments

45.—(1) Subject to paragraph (4), this rule applies where any notice is received—

(a)of the registration in the High Court of a magistrates’ court order;

(b)of the discharge or variation by the High Court or a county court of a High Court or county court order registered in a magistrates’ court;

(c)of the discharge or variation by the Court of Session or High Court in Northern Ireland of an order made by such a court and registered in a magistrates’ court;

(d)under section 5(1) or (2) of the 1958 Act.

(2) The designated officer for the magistrates’ court must register the notice in that officer’s court by means of a memorandum in the register.

(3) In the case of a notice under section 5(1) or (2) of the 1958 Act, the designated officer for the magistrates’ court must ensure that the person in possession of any warrant of commitment, issued but not executed, for the enforcement of the order is informed of the giving of that notice.

(4) Where any notice is received by a court that the registration of an order in the High Court has been cancelled under section 5(4) of the 1958 Act, the designated officer must enter the particulars of the notice in the register.

Complaints for variation of High Court maintenance orders: jurisdiction

46.  Rule 41 of the Magistrates’ Courts Rules 1981(38) applies to a complaint for the variation of a High Court or county court order registered in a magistrates’ court as if—

(a)the order were a magistrates’ court maintenance order made by the court of registration; and

(b)in paragraph (4) of that rule, for the words “shall cause” there were substituted “may cause”.

CHAPTER 3MISCELLANEOUS

Administering court to be informed of proceedings in a foreign court

47.—(1) This rule applies where any decision is reached, or warrant of distress or commitment is issued, in pursuance of a complaint or application relating to a maintenance order or the enforcement of a maintenance order, being a complaint or application heard by a magistrates’ court other than the administering court.

(2) The designated officer for the magistrates’ court referred to in paragraph (1) must immediately send to the designated officer for the administering court an extract from the register containing a minute or memorandum of the decision, or the issue of the warrant, as the case may be.

(3) On receipt of the extract, the designated officer for the administering court must enter the minute or memorandum in the register for that officer’s court.

Review of committals, etc.

48.—(1) Paragraph (2) applies where, for the purposes of enforcing a maintenance order, a magistrates’ court has exercised its power to postpone the issue of a warrant of commitment under—

(a)section 77(2) of the 1980 Act; or

(b)section 18(3) or (5) of the 1958 Act(39),

and, under the terms of the postponement, the warrant falls to be issued.

(2) The designated officer must—

(a)give notice to the defendant; and

(b)attach to that notice a copy of the form referred to in the Forms Practice Direction.

(3) An application under section 18(1) of the 1958 Act requesting that a warrant not be issued must be in the form referred to in the Forms Practice Direction and must be sent to the designated officer.

(4) For the purposes of section 18(2) of the 1958 Act, the period for the receipt by the designated officer of an application under section 18(1) of the 1958 Act is eight days beginning with the day on which the designated officer sends to the defendant the notice referred to in paragraph (2).

(5) Where the period of eight days referred to in paragraph (4) ends on a day when the court office is closed, an application received by the designated officer on the next day on which the court office is open will be made within time.

(6) An application under section 18(4) of the 1958 Act (requesting cancellation of a warrant of commitment which has been executed) must be in the form referred to in the Forms Practice Direction.

(7) Where an application by a defendant under section 18(1) or (4) of the 1958 Act is considered by the court, the designated officer must give notice of the decision of the court, if the person in question is not present—

(a)to the person in whose favour the maintenance order in question was made; and

(b)except where an application under section 18(1) of the 1958 Act is dismissed, to the defendant.

(8) Where, on considering an application by a defendant under section 18(4) of the 1958 Act, the court—

(a)makes an order under section 18(5)(b) of the 1958 Act for the cancellation of the warrant of commitment; or

(b)remits under section 18(6) of the 1958 Act the whole or any part of the sum in respect of which the warrant was issued,

the designated officer must immediately give written notice of the decision to the person in charge of the prison or other place in which the defendant is detained.

PART 5PROCEEDINGS UNDER THE 1972 ACT

CHAPTER 1PROCEEDINGS UNDER PART 1 OF THE 1972 ACT

Interpretation

49.—(1) In this Chapter—

“Hague Convention Country” means a country listed in Schedule 1 to the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1993(40);

“payee”, in relation to a maintenance order, means the person eligible to receive the payments for which the order provides;

“payer”, in relation to a maintenance order, means the person liable to make the payments for which the order provides; and

“reciprocating country” means a country to which Part 1 of the 1972 Act extends.

(2) In this Chapter, an expression defined in the 1972 Act has the meaning given to it in that Act.

Confirmation of a provisional order made in a reciprocating country

50.—(1) The FPR as modified by paragraph (2) shall apply to proceedings in a magistrates’ court for the confirmation of a provisional order made in a reciprocating country varying a maintenance order to which section 5(5) or 9(6) of the 1972 Act(41) applies.

(2) The modification is that in rule 34.16, paragraph (6) is omitted.

Consideration of variation of a maintenance order made by a magistrates’ court: Hague Convention Countries

51.—(1) The FPR as modified by paragraph (2) shall apply where—

(a)an application has been made to a magistrates’ court by a payee for the variation of an order to which section 5 of the 1972 Act applies; and

(b)the payer resides in a Hague Convention Country.

(2) The modifications are, in rule 34.17 as substituted by rule 34.27(5)—

(a)in the heading, after “Consideration of” insert “variation or”; and

(b)in paragraph (1)(a), after “for the” insert “variation or”.

Consideration of variation of a maintenance order made by a magistrates’ court: United States of America

52.—(1) The FPR as modified by paragraph (2) shall apply where—

(a)an application has been made to a magistrates’ court by a payee for the variation of an order to which section 5 of the 1972 Act applies; and

(b)the payer resides in the United States of America.

(2) The modifications are, in rule 34.17 as substituted by rule 34.28(5)—

(a)in the heading, after “Consideration of” insert “variation or”; and

(b)in paragraph (1)(a), after “for the” insert “variation or”.

Notification of variation of a maintenance order by a magistrates’ court

53.—(1) The FPR as modified by paragraph (2) shall apply where a magistrates’ court makes an order—

(a)not being a provisional order, varying a maintenance order to which section 5 of the 1972 Act applies;

(b)under section 9 of the 1972 Act, varying a registered order.

(2) The modifications are, in rule 34.19—

(a)in the heading, after “confirmation” insert “, variation”;

(b)in paragraph (1)(a) and (b), before “revoking” insert “varying or”;

(c)in paragraph (2), after “making,” insert “variation,”; and

(d)omit paragraph (3).

Notification of proceedings in a Hague Convention Country or in the United States of America

54.—(1) This rule applies where the designated officer receives from the Lord Chancellor notice of the institution of proceedings, including notice of the substance of the claim, in a Hague Convention Country or in the United States of America in relation to the making, variation or revocation of a maintenance order.

(2) If it appears to the designated officer that the person against whom the proceedings were instituted is residing within the local justice area for which the court acts, the designated officer must serve the notice on that person by sending it by recorded delivery addressed to that person at that person’s last known or usual address.

(3) If it appears to the designated officer that the person concerned is not residing within the area, the court officer must inform the Lord Chancellor and return the notice.

CHAPTER 2PROCEEDINGS UNDER PART 2 OF THE 1972 ACT

Interpretation

55.  In this Chapter—

(a)“convention country” means a country or territory specified in an Order in Council made under section 25 of the 1972 Act; and

(b)an expression defined in the 1972 Act has the meaning given to it in that Act.

Dismissal of an application under section 27A of the 1972 Act or application for variation

56.—(1) Where a magistrates’ court dismisses an application under—

(a)section 27A of the 1972 Act(42) (application for recovery of maintenance); or

(b)an application by a person in a convention country for the variation of a registered order,

the designated officer must send a written notice of the court’s decision to the Lord Chancellor.

(2) The notice referred to in paragraph (1) must include a statement of the justices’ reasons for their decision.

Application for recovery of maintenance in England and Wales: section 27B of the 1972 Act

57.—(1) Where a designated officer receives an application for the recovery of maintenance in England and Wales sent from the Lord Chancellor to a magistrates’ court under section 27B of the 1972 Act(43)—

(a)the justices’ clerk must fix the date, time and place for a hearing or a directions appointment, allowing sufficient time for service under this rule to be effected at least 21 days before the date so fixed; and

(b)the designated officer must serve copies of the application and any accompanying documents, together with a notice stating the date, time and place so fixed, on the respondent.

(2) Within 14 days of service under this rule, the respondent must file an answer to the application in the form referred to in the Forms Practice Direction.

Application under section 26(1) or (2) of the 1972 Act and certificate under section 26(3A) of the 1972 Act: registration

58.  Where—

(a)an application under section 26(1) or (2) of the 1972 Act; or

(b)a certificate under section 26(3A)(44) of the 1972 Act,

is required to be registered in a magistrates’ court in pursuance of the Recovery of Maintenance (United States of America) Order 2007(45), the designated officer must enter a minute or memorandum of the application or certificate in the register.

Registration of an order: sections 27C(7) and 32(2), (3) and (6) of the 1972 Act

59.—(1) Where a magistrates’ court makes an order which is required under section 27C(7)(46) of the 1972 Act to be registered, the justices’ clerk must enter a minute or memorandum of the order in the register.

(2) Where a designated officer in pursuance of section 32(2) or (3) of the 1972 Act(47) receives a certified copy of an order, the officer must register the order in the officer’s court by means of a minute or memorandum in the register.

(3) Every minute or memorandum entered in pursuance of paragraph (1) or (2) must specify the section and subsection of the 1972 Act under which the order in question is registered.

(4) Where a designated officer registers an order in pursuance of section 27C(7) or 32(2) or (3) of the 1972 Act, the designated officer must send written notice to the Lord Chancellor that the order has been duly registered.

(5) Where a designated officer is required by section 32(6) of the 1972 Act to give notice of the registration of an order, the designated officer will do so by sending written notice to the officer specified in that subsection that the order has been duly registered.

Payments made to a designated officer

60.—(1) A designated officer to whom payments are made by virtue of section 27C, section 33(3A) or section 34A of the 1972 Act(48) must send those payments by post to such person or authority as the Lord Chancellor may from time to time direct.

(2) Subject to paragraph (3), where it appears to a designated officer to whom payments under a registered order are made that any sums payable under the order are in arrear, the designated officer may proceed in the designated officer’s own name for the recovery of those sums.

(3) Where it appears to the designated officer referred to in paragraph (2) that sums payable under the order are in arrear to an amount equal—

(a)in the case of payments to be made monthly or less frequently, to twice the sum payable periodically; or

(b)in any other case, to four times the sum payable periodically,

the designated officer must proceed in the designated officer’s own name for the recovery of those sums, unless it appears to the designated officer that it is unreasonable in the circumstances to do so.

Method of payment

61.—(1) This rule applies where the court exercises its duties or powers under section 27C, 33(3A) or 34A of the 1972 Act.

(2) Where the court orders that payments under the order are to be made by a particular means—

(a)the justices’ clerk will record on the copy of the order the means of payment which the court has ordered; and

(b)the designated officer will notify in writing, as soon as practicable, the person liable to make the payments under the order, how payments are to be made.

(3) Paragraph (4) applies where the court orders that payments be made to the designated officer for the court, or to the designated officer for any other magistrates’ court, by a method of payment falling within section 59(6) of the 1980 Act(49).

(4) The designated officer for the court to whom the payments are to be made must notify the person liable to make the payments under the order of sufficient details of the account into which the payments should be made to enable payments to be made into that account.

Variation of method of payment

62.—(1) This rule applies where, under section 34A(4) of the 1972 Act, the designated officer receives an application from an interested party for the method of payment to be varied.

(2) As soon as practicable, the designated officer must notify in writing the interested party who made the application and, where practicable, any other interested party, of the result of the application, including any decision to refer the matter to the court.

(3) Where the justices’ clerk grants the application, the justices’ clerk must record the variation on the copy of the order.

Application under section 34 of the 1972 Act: variation or revocation

63.—(1) This rule applies in relation to an application under section 34 of the 1972 Act(50) for the variation or revocation of a registered order.

(2) An application which is made directly to the registering court must be filed in the form referred to in the Forms Practice Direction.

(3) Where the designated officer receives an application, either filed in accordance with paragraph (2) or sent from the Lord Chancellor under section 34(3) of the 1972 Act—

(a)the justices’ clerk must set the date, time and place for a hearing or a directions appointment; and

(b)the designated officer must notify the applicant of that date, time and place.

Application under section 35 of the 1972 Act: variation or revocation

64.—(1) This rule applies in relation to an application under section 35 of the 1972 Act(51) for the variation or revocation of a registered order.

(2) Notice under section 35(3)(b) of the 1972 Act of the time and place appointed for the hearing of the application must be in the form specified in Schedule 3.

(3) The notice referred to in paragraph (2) must be sent by post by the designated officer to the Lord Chancellor for onward transmission to the appropriate authority in the convention country in which the respondent is residing.

(4) The time appointed for the hearing of the application must not be less than six weeks later than the date on which the notice referred to in paragraph (2) is sent to the Lord Chancellor.

Request under section 38(1) of the 1972 Act to a magistrates’ court

65.—(1) This rule applies where a magistrates’ court receives from the Lord Chancellor a request under section 38(1) of the 1972 Act (taking evidence at the request of a court in a convention country) to take the evidence of any person.

(2) Subject to paragraph (3)—

(a)the evidence must be taken in the same manner as if the person concerned were a witness in proceedings on a complaint;

(b)any oral evidence so taken must be put into writing and read to the person who gave it, who must be required to sign the document; and

(c)the justices by whom the evidence of any person is so taken must certify at the foot of any document setting out the evidence of, or produced in evidence by, that person that such evidence was taken, or document received in evidence, as the case may be, by them.

(3) Where the request referred to in section 38(1) of the 1972 Act includes a request that the evidence be taken in a particular manner, the court by which the evidence is taken must, so far as circumstances permit, comply with that request.

Request under section 38(1) of the 1972 Act to a designated officer

66.—(1) This rule applies where a designated officer receives from the Lord Chancellor a request under section 38(1) of the 1972 Act to take the evidence of any person.

(2) Subject to paragraph (3)—

(a)the person whose evidence is to be taken must be examined on oath by or before a justices’ clerk;

(b)any oral evidence must be put into writing and read to the person who gave it, who must be required to sign the document; and

(c)the justices’ clerk must certify at the foot of any document setting out the evidence of, or produced by, that person, that such evidence was taken, or document received in evidence, as the case may be, by that justices’ clerk.

(3) Where the request referred to in section 38(1) of the 1972 Act includes a request that the evidence be taken in a particular manner, the justices’ clerk by whom the evidence is taken must, so far as circumstances permit, comply with that request.

(4) For the purposes of this rule, a justices’ clerk has the same power to administer oaths as a single justice of the peace.

Onward transmission of documents

67.  Any document mentioned in paragraph (2)(c) of rule 65 or 66 must be sent to the Lord Chancellor for onward transmission to the appropriate authority in the convention country in which the request referred to in section 38(1) of the 1972 Act originated.

Procedural rules: proceedings pursuant to rules 57 and 63

68.—(1) Schedule 4 applies to proceedings pursuant to rules 57 and 63.

(2) In Schedule 4 as it applies to rule 57, “the resident party” and “the non-resident party” are to be taken mean the respondent and the applicant respectively.

(3) In Schedule 4 as it applies to rule 63, “the resident party” and “the non-resident party” are to be taken to mean the payer and the payee under the order in question respectively.

PART 6THE DOMESTIC PROCEEDINGS AND MAGISTRATES’ COURTS ACT 1978 AND THE CIVIL PARTNERSHIP ACT 2004

Applications for variation under section 20 of the Domestic Proceedings and Magistrates’ Courts Act 1978 or Schedule 6 to the Civil Partnership Act 2004

69.—(1) The FPR shall apply to an application in a magistrates’ court—

(a)under section 20 of the Domestic Proceedings and Magistrates’ Courts Act 1978(52) for the variation of an order; or

(b)paragraphs 30 to 34 of Schedule 6 to the Civil Partnership Act 2004 for the variation of an order,

with the modifications in paragraph (2).

(2) The modifications are—

(a)in rule 9.10—

(i)in paragraph (1), for “The” substitute “Subject to paragraph (1A), the”; and

(ii)after paragraph (1), insert—

“(1A) Where the application is—

(a)for the variation of an order under section 2(1)(c), 6 or 7 of the 1978 Act(53) or paragraph 2(1)(c) of or Part 2 or 3 of Schedule 6 to the 2004 Act for periodical payments in respect of a child;

(b)the application is made by the child in question; and

(c)the child in question is aged 16 or over,

the child does not require permission to make the application.”; and

(b)in the table in rule 9.21 “, except an application” is omitted in both of the places where those words occur.

PART 7THE CIVIL JURISDICTION AND JUDGMENTS ACT 1982, THE LUGANO CONVENTION, THE 1988 CONVENTION AND THE MAINTENANCE REGULATION: APPLICATIONS FOR VARIATION OF MAINTENANCE ORDERS

Interpretation

70.  In this Part—

“the 1982 Act” means the Civil Jurisdiction and Judgments Act 1982;

“the 1988 Convention” means the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16th September 1988;

“the Lugano Convention” means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark signed on behalf of the European Community on 30th October 2007; and

“the Maintenance Regulation” means Council Regulation (EC) No 4/2009(54) of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations, including as applied in relation to Denmark by virtue of the Agreement(55) made on 19th October 2005 between the European Community and the Kingdom of Denmark.

Application for the variation of a maintenance order to which the 1982 Act, the Lugano Convention, the 1988 Convention or the Maintenance Regulation applies

71.—(1) The FPR shall apply to an application for the variation of a maintenance order in relation to which the court has jurisdiction by virtue of the 1982 Act, the Lugano Convention, the 1988 Convention or the Maintenance Regulation, and the respondent is outside the United Kingdom, with the modification in paragraph (2).

(2) The modification is that that in rule 9.22(1)(56), after “or for” insert “the variation or”.

PART 8THE 1986 ACT

Interpretation of this Part

72.  In this Part—

“appropriate court” means, in relation to—

“Part 1 Order” means an order under Part 1 of the 1986 Act; and

“specified dependent territory” means a dependent territory specified in column 1 of Schedule 1 to the Family Law Act 1986 (Specified Dependent Territories) Order 1991(57).

Section 5 of the 1986 Act: staying of proceedings

73.—(1) Where under section 5(2) of the 1986 Act(58) a magistrates’ court stays proceedings on an application for a Part 1 order, notice of the stay must be given to the parties to the proceedings.

(2) Where under section 5(3) of the 1986 Act(59) a magistrates’ court removes a stay granted in accordance with section 5(2) of the 1986 Act—

(a)notice of the removal of the stay must be given to the parties to the proceedings; and

(b)the court must proceed to deal with the application accordingly.

Chapter 5 of the 1986 Act: registration and enforcement

74.—(1) The FPR shall apply to an application under section 27 of the 1986 Act(60) for the registration and enforcement of a custody order made in a magistrates’ court, with the modifications in paragraph (2).

(2) The modifications are—

(a)in rule 32.25—

(i)in the heading, omit “made by the High Court or a county court”;

(ii)in paragraph (1), omit “made in the High Court or a county court”;

(iii)in paragraph (5)(b), after “district judge,”, insert “or, in a magistrates’ court, to the court”; and

(iv)after paragraph (5), insert—

“(6) A memorandum of the granting by a magistrates’ court of an application referred to in paragraph (1) must be entered in the register of the court to which the application was made.

(7) Where the court officer for a magistrates’ court which granted an application referred to in paragraph (1) receives notice of the registration of the order in the appropriate court, the court officer must enter particulars of the notice in the register of that court officer’s court.”; and

(b)in rule 32.32, in paragraphs (b) and (c), after “judge” insert “, or in a magistrates’ court, the court”.

(3) The FPR shall apply where an order under Part 1 of the 1986 Act registered in an appropriate court is varied or revoked, with the modifications in paragraph (4).

(4) The modification are that in rule 32.27—

(a)in the heading, omit “in the High Court or a county court”; and

(b)after paragraph (2), insert—

“(3) Where the court officer referred to in paragraph (1) or (2) is a court officer of a magistrates’ court, the court officer will record the fact referred to in paragraph (1) or (2)(a) or (b) by entering a notice in the register.”.

Orders under section 33 or 34 of the 1986 Act

75.  The FPR shall apply to an application in a magistrates’ court for an order—

(a)for the disclosure of information of the whereabouts of a child under section 33 of the 1986 Act(61); and

(b)authorising the taking charge and delivery of a child under section 34 of the 1986 Act(62).

PART 9THE 1989 ACT

Applications under the 1989 Act in respect of enforcement of contact orders

76.—(1) The FPR shall apply to—

(a)an application in the magistrates’ court under any of the following provisions of the 1989 Act(63)—

(i)section 11J (enforcement orders);

(ii)section 11O (compensation for financial loss);

(iii)paragraph 4 of Schedule A1 (enforcement orders: power to revoke);

(iv)paragraph 5, 6 or 7 of Schedule A1 (enforcement orders: amendment);

(v)paragraph 9 of Schedule A1 (breach of an enforcement order); or

(b)an application in the magistrates’ court under section 8(2)(a) of the Children and Adoption Act 2006(64),

with the modifications in paragraph (2).

(2) The modifications are—

(a)where the proceedings referred to in paragraph (1)(a) are treated as family proceedings by virtue of section 65 of the 1980 Act, in rule 2.6—

(i)in paragraph (1)—

(aa)in sub-paragraph (f), delete “or”;

(bb)in sub-paragraph (g), for “;” substitute “; or”;

(cc)after sub-paragraph (g), insert—

“(h)under paragraph 5 of Schedule A1.”; and

(ii)in paragraph (3), for “paragraphs (a), (c) and (d)” substitute “paragraphs (a), (b), (d) and (h)”;

(b)in rule 12.33(1), omit “to the High Court or a county court”; and

(c)in rule 12.35(1), for “the High Court or a county court” substitute “the court”.

(3) The FPR shall apply in a case where a magistrates’ court is considering exercising, or has exercised, a power under either of the following provisions of the 1989 Act(65)—

(i)section 11L(5) (enforcement orders: provision of information); or

(ii)section 11M(1) (enforcement orders: monitoring).

Enforcement of a residence order or a special guardianship order under the 1989 Act

77.—(1) Where a person in whose favour a residence order or a special guardianship order is in force wishes to enforce that order, that person must file with the court a written statement describing the alleged breach of the order.

(2) When a statement referred to in paragraph (1) is received by the court—

(a)the justices’ clerk must fix a date, time and place for a hearing of the proceedings;

(b)the designated officer must give notice of the hearing as soon as practicable to—

(i)the person wishing to enforce the order; and

(ii)any person who is alleged to be in breach of the order.

(3) In this rule—

“residence order” has the meaning given in section 8(1) of the 1989 Act; and

“special guardianship order” has the meaning assigned to it by section 14A(1) of the 1989 Act(66).

Application to vary a contribution order under the 1989 Act

78.—(1) The FPR shall apply to an application under paragraph 23(8) of Schedule 2 to the 1989 Act to vary a contribution order, with the modifications in paragraph (2).

(2) The modifications are—

(a)in rule 12.2, in the definition of “public law proceedings”, in paragraph (p), after “a contribution order,” insert “variation”; and

(b)in the table in rule 12.3(1), in the column 1 entry relating to proceedings for an order revoking a contribution order , after “order” insert “varying or”.

(Paragraph 6A of Schedule 1 to the 1989 Act sets out the procedure for an application for the variation of an order made by a magistrates’ court under Schedule 1 to the 1989 Act for periodical payments or for the payment of a lump sum by instalments.)

PART 10THE EDUCATION ACT 1996

Direction to a local authority under section 447(2) and (3) of the Education Act 1996

79.—(1) For the purposes of section 447(2) and (3) of the Education Act 1996(67), a direction by a magistrates’ court to a local authority to apply for an education supervision order must be made in writing.

(2) Where following such a direction, a local authority informs the court that they have decided not to apply for an education supervision order, they must do so in writing.

(3) In this rule, “education supervision order” has the meaning assigned to it by section 36(2) of the 1989 Act.

PART 11THE 1996 ACT

Applications under Part 4 of the 1996 Act: enforcement and bail

80.—(1) In respect of—

(a)an application for enforcement of an order made on an application under Part 4 of the 1996 Act(68) in the magistrates’ court; and

(b)an application for bail made to a magistrates’ court by a person arrested under a power of arrest attached to an occupation order made under section 47 of the 1996 Act,

the FPR shall apply, with the modifications in paragraph (2).

(2) The modifications are that after rule 10.17 there is inserted—

“Enforcement of orders made in a magistrates’ court

10.18.—(1) Where a power of arrest is attached to one or more of the provisions (“the relevant provisions”) of an occupation order, the relevant provisions must be set out in a separate form, which must not include any provisions of the order to which the power of arrest was not attached.

(2) Where the court makes a non-molestation order or paragraph (1) applies, the following documents must be delivered to the officer for the time being in charge of any police station for the applicant’s address or of such other police station as the court may specify—

(a)a copy of the non-molestation order or the form referred to in paragraph (1); and

(b)a statement showing that the respondent has been served with the order or informed of its terms (whether by being present when the order was made or by telephone or otherwise).

(3) The documents referred to in paragraphs (2)(a) and (b) must be delivered by—

(a)the applicant, if the applicant is responsible for serving the order on the respondent in accordance with rule 10.6(1); or

(b)the court officer, if the court is responsible for serving the order on the respondent in accordance with rule 10.6(2).

(4) Where an order is made varying or discharging the relevant provisions of the occupation order or, as the case may be, any provisions of the non-molestation order, the court officer must—

(a)immediately inform the officer who received a copy of any order or form under paragraph (2) and, if the applicant’s address has changed, the officer for the time being in charge of the police station for the new address; and

(b)deliver a copy of the order to any officer so informed.

(5) Any warrant for the arrest of the respondent issued on an application under section 47(8) of the 1996 Act must be delivered by the court officer to the officer for the time being in charge of any police station for the respondent’s address or of such other police station as the court may specify.

(6) The court before which a person is brought following that person’s arrest may—

(a)determine whether the facts, and the circumstances which led to the arrest, amounted to disobedience of the order; or

(b)adjourn the proceedings and, where such an order is made, the arrested person may be released and—

(i)unless the court directs otherwise, be dealt with within 14 days of the day on which the arrested person was arrested; and

(ii)be given not less than 2 business days’ notice of the adjourned hearing.

Nothing in this paragraph prevents the issue of a notice under paragraph (10) if the arrested person is not dealt with within the period mentioned in sub-paragraph (b)(i) above.

(7) Paragraphs (8) to (15) apply for the enforcement of orders made on applications under Part 4 of the 1996 Act by committal order.

(8) Subject to paragraphs (13) and (14), an order must not be enforced by committal order unless—

(a)a copy of the occupation order or non-molestation order has been served personally on the respondent; and

(b)where the order requires the respondent to do an act, the copy has been so served before the expiration of the time within which the respondent was required to do the act and was accompanied by a copy of any order, made between the date of the order and the date of service, fixing that time.

(9) At the time when the order is drawn up, the court officer must—

(a)where the order made is (or includes) a non-molestation order; and

(b)where the order made is an occupation order and the court so directs,

issue a copy of the order, indorsed with or incorporating a notice as to the consequences of disobedience, for service in accordance with paragraph (8).

(10) If the respondent fails to obey the order, the court officer must, at the request of the applicant, issue a notice warning the respondent that an application will be made for the respondent to be committed and, subject to paragraph (14), the notice must be served on the respondent personally.

(11) The request for issue of the notice under paragraph (10) must be treated as a complaint and must—

(a)identify the provisions of the order or undertaking which it is alleged have been disobeyed or broken;

(b)list the ways in which it is alleged that the order or undertaking has been disobeyed or broken; and

(c)be supported by a statement which is signed and is declared to be true and which states the grounds on which the application is made,

and, unless service is dispensed with under paragraph (14), a copy of the statement must be served with the notice.

(12) If a committal order is made, it must include provision for the issue of a warrant of committal and, unless the court otherwise orders—

(a)a copy of the order must be served personally on the person to be committed either before or at the time of the execution of the warrant; or

(b)the order for the issue of the warrant may be served on the person to be committed at any time within 36 hours after the execution of the warrant.

(13) An order requiring a person to abstain from doing an act may be enforced by committal order notwithstanding that a copy of the order has not been served personally if the court is satisfied that, pending such service, the respondent had notice thereof either by being—

(a)present when the order was made;

(b)notified of the terms of the order whether by telephone or otherwise.

(14) The court may dispense with service of a copy of the order under paragraph (8) or a notice under paragraph (10) if the court thinks it just to do so.

(15) Where service of a notice to show cause is dispensed with under paragraph (14) and a committal order is made, the court may of its own motion fix a date and time when the person to be committed is to be brought before the court.

(16) Paragraphs (8) to (12), (14) and (15) apply to the enforcement of undertakings with the necessary modifications and as if—

(a)for paragraph (8) there were substituted the following—

“(8) A copy of a form recording the undertaking must be delivered by the court officer to the party giving the undertaking—

(a)by handing a copy of the document to that person before that person leaves the court building; or

(b)where that person’s place of residence is known, by posting a copy to that person’s place of residence; or

(c)through that person’s solicitor,

and, where delivery cannot be effected in this way, the court officer must deliver a copy of the document to the party for whose benefit the undertaking is given and that party must serve it personally as soon as is practicable.”;

(b)in paragraph (14), the words from “a copy” to “paragraph (8) or” were omitted.

(17) Where a person in custody under a warrant or order desires to apply to the court for discharge, that person must make an application in writing attested by the governor of the prison showing that that person has purged or is desirous of purging his or her contempt and the court officer must, not less than one day before the application is heard, serve notice of it on the party (if any) at whose instance the warrant or order was issued.

(18) The court by which an order of committal is made may by order direct that the execution of the order of committal be suspended for such period or on such terms or conditions as it may specify.

(19) Where execution of an order of committal is suspended by an order under paragraph (18), the applicant for the order of committal must, unless the court otherwise directs, serve on the person against whom it was made a notice informing that person of the making and terms of the order under that paragraph.

(20) The court may adjourn consideration of the penalty to be imposed for contempts found proved and such consideration may be restored if the respondent does not comply with any conditions specified by the court.

(21) Where the court makes a hospital order or a guardianship order under the Mental Health Act 1983(69), the court officer must—

(a)send to the hospital any information which will be of assistance in dealing with the patient; and

(b)inform the applicant when the respondent is being transferred to hospital.

(22) Where a transfer direction given by the Secretary of State under section 48 of the Mental Health Act 1983(70) is in force in respect of a person remanded in custody by the court, the court officer must notify—

(a)the governor of the prison to which that person was remanded; and

(b)the hospital where he is detained,

of any committal hearing which that person is required to attend and the court officer must give notice in writing to the hospital where that person is detained of any further remand.

(23) In paragraph (6) “arrest” means arrest under a power of arrest attached to an occupation order under section 47(2) or (3) of the 1996 Act or under a warrant of arrest issued on an application under section 47(8) of the 1996 Act.

Applications under Part 4 of the 1996 Act: bail

10.19.—(1) An application for bail made by a person arrested under a power of arrest attached to an occupation order or a warrant of arrest issued on an application under section 47(8) of the 1996 Act may be made either orally or in writing.

(2) Where an application is made in writing, it must contain—

(a)the full name of the person making the application;

(b)the address of the place where the person making the application is detained at the time when the application is made;

(c)the address where the person making the application would reside if that person were to be granted bail;

(d)the amount of the recognizance in which that person would agree to be bound; and

(e)the grounds on which the application is made and, where a previous application has been refused, full particulars of any change in circumstances which has occurred since that refusal.

(3) An application made in writing must be signed by the person making the application or by a person duly authorised by that person or, where the person making the application is a minor or is for any reason incapable of acting, by a litigation friend or children’s guardian acting on that person’s behalf, and a copy must be served by the person making the application on the applicant for the order under Part 4 of the 1996 Act.

(4) A bail notice must be given to the respondent where the respondent is remanded on bail.

Powers of a single justice

10.20.  Where the proceedings are treated by the court as family proceedings by virtue of section 65 of the 1980 Act, a single justice of the peace cannot perform the functions conferred on the court by rule 10.18(9)(b), (12) to (15) and (18) to (20).

Powers of a justices’ clerk

10.21.  A justices’ clerk cannot perform the functions conferred on the court by rules 10.18(6), 10.18(9)(b), (12) to (15) and (18) to (20).”.

PART 12AMENDMENTS

Amendment of the Magistrates’ Courts Rules 1981

81.—(1) The Magistrates’ Courts Rules 1981 are amended as provided in this rule.

(2) For the heading to rule 3(71), substitute “Provisions to which these Rules are subject”.

(3) In rule 3—

(a)for “and” substitute “,”; and

(b)after “2010” insert “and the Magistrates’ Courts (Enforcement or Variation of Orders Made in Family Proceedings and Miscellaneous Provisions) Rules 2011”.

(4) After rule 59 insert—

“Court to which complaint for the enforcement of a maintenance decision to which Section 1 of Chapter IV of the Maintenance Regulation applies must be made

59A.—(1) In this rule and in rule 59B—

“the Maintenance Regulation” means Council Regulation (EC) No 4/2009 of 18 December 2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark;

“decision” has the meaning given in Article 2 of that Regulation.

(2) A complaint for the enforcement of a decision to which Section 1 of Chapter IV of the Maintenance Regulation applies (that is, a decision made in any other Member State of the European Union except Denmark) shall be heard by the court for the local justice area in which—

(a)the person against whom enforcement is sought is resident,

(b)that person has assets to which the Maintenance Orders Act 1958 applies, or

(c)any other matter relating to enforcement arises.

(3) Where—

(a)the complainant is the person in whose favour the order was made or, if that person is a child, is the child or the person with whom the child has his or her home,

(b)the complainant resides in a local justice area other than that in which the court acts, and

(c)payment is directed to be made to the complainant,

the complaint may be heard by the court for that local justice area.

(4) Where an application for enforcement is made under Article 56 of the Maintenance Regulation on the form at Annex VI to that Regulation, the complaint may be made using that form.

Complaint by debtor under Article 21 of the Maintenance Regulation for refusal or suspension of enforcement

59B.  A complaint by a debtor under Article 21 of the Maintenance Regulation for the refusal or suspension of enforcement of a decision shall be heard by—

(a)the court to which a complaint for enforcement of that decision has been made in accordance with rule 59A, or

(b)where no such complaint has been made at the date at which the debtor makes a complaint under this rule, the court to which a complaint for enforcement would be required to be made under rule 59A.”.

PART 13MISCELLANEOUS

Revocations

82.  The provisions in column 1 of the table in Schedule 5 are revoked to the extent specified in column 3 of the table.

Transitional provision

83.—(1) Rules 50 to 53, 69, 71, 74 to 76, 78 and 80 shall apply, so far as practicable, to proceedings to which those rules apply which have been started but have not been concluded by 18th June 2011.

(2) Where, by reason of paragraph (1), rules 50 to 53, 69, 71, 74 to 76, 78 and 80 do not apply to particular proceedings which have been started but not concluded before 18th June 2011, the rules in force immediately before that day shall continue to apply to those proceedings.