The Family Proceedings (Amendment) Rules 2009

23 MAR 2009

FRI 20/03/2009 - These Rules amend the Family Proceedings Rules 1991 (the 1991 Rules).

Rules 3 and 4 and 9 to 12 amend the rules relating to the process for-

(a) statutory rights of appeal from decisions of a magistrates' court; and
(b) internal appeals in a county court from a decision of a district judge to a judge in proceedings which are listed in rule 4.1(2) of the 1991 Rules and to which Parts 4 and 4A of the Family Law Act 1996 (c.27) apply.

Rules 8.A1 and 8.2 to 8.H (the new rules) which are inserted into the 1991 Rules by these Rules, replace rules 4.22, 7.28, 8.1A and 8.1B of the 1991 Rules and are modelled on those rules, Order 55 of the Rules of the Supreme Court 1965 (S.I. 1965/1776) and rules 180 and 181 of the Family Procedure (Adoption) Rules 2005 (S.I. 2005/2795). The new rules are freestanding and rationalise and modernise the existing rules. A notice of appeal is the common way of commencing the appeals within the scope of the new rules.

In addition, the new rules will be able to accommodate the appeals which are proposed to come to a county court from decisions of a magistrates' court under the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 (the draft order) which has been laid in draft before Parliament. New rule 8.2A(3)(c) changes the time limit for appealing against an order under section 29 of the Domestic Proceedings and Magistrates' Courts Act 1978 (c.22) from 6 weeks to 21 days so that the time will be in line with the time for appealing against decisions of the magistrates' court under the proposed new section 111A of the Magistrates' Courts Act 1980 (c.43) (in article 4(3) of the draft order) on the ground that the decision is wrong in law and in excess of jurisdiction.

In consequence of the new rules, rule 13 adds a new paragraph to rule 8.3 of the 1991 Rules which relates to appeals under section 13 of the Administration of Justice Act 1960 (c.65).

By virtue of rule 17, the new rules will not apply to any appeal in which the appeal notice is filed or notice of motion is lodged before these Rules come into force.

Rule 5 amends rule 3.13(1)(e) of the 1991 Rules to require, on an application for a declaration of parentage, information to be given about any change of name of the mother or alleged mother and not just changes made on marriage. This would include change of name on entry into a civil partnership. This takes account of the fact that, on the coming into force of section 42 of the Human Fertilisation and Embryology Act 2008 (c.22), the existence of a civil partnership entered into by the mother may be a relevant consideration. Rule 14 amends rule 9.3 of the 1991 Rules to provide that where service on a child (who is not also a protected party) could previously be effected on a father it may now be effected on either parent.

Rules 6 to 8 and 16 are consequential on the coming into force of the Childcare Act 2006 (c.21) ("the 2006 Act"). The amendments insert provision to ensure that an application for a warrant by Her Majesty's Chief Inspector of Education, Children's Services and Skills under section 79 (power of constable to assist in exercise of powers of entry) of the 2006 Act may be made ex parte, and to specify for such an application the appropriate form, periods of notice and respondents. Rule 15 substitutes a new Form C19 (Warrant of Assistance) which form now refers to an application under section 79 and makes provision for an application under section 102 of the Children Act 1989 (c.41) in relation to the exercise of powers, in Wales, under section 79U of that Act.

Rule 15 also substitutes a new Form C23 (Emergency Protection Order) in consequence of the repeal of section 45(9) of the Children Act 1989 by section 30 of the Children and Young Persons Act 2008 (c.23).

These Rules come into force on 6 April 2009.

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