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The Family Court Practice 2015 (Red Book) Family Court Practice 2015

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Emergency Remedies in the Family Courts

£435.00

"A very good tool for the busy family lawyer"

Solicitors Journal

Recognised as the standard reference work on the subject, Emergency Remedies in the Family Courts gives practical guidance on how all emergency applications should be made and is available as an online or print subscription.

 To arrange your FREE 14-day trial to the online service or to find out how a print or online subscription to Emergency Remedies in the Family Courts will benefit your day-to-day work contact our Account Management Team today.

 For any family law crisis, Emergency Remedies in the Family Courts:

  • Identifies the appropriate remedy
  • Explains in step-by-step detail the requisite procedure
  • Provides model applications and pleadings
  • Clarifies the underlying law
Written and edited by an unrivalled team of experts, definitive advice is provided on all aspects of the law, together with guidance on over 70 urgent applications, including:

  • Application for non-molestation and/or occupation order under Family Law Act 1996, Part IV
  • Application for a freezing injunction, search orders and writ ne exeat regno
  • Authority to place a child in secure accommodation
  • Application for an emergency protection order
  • Application for authority under the inherent jurisdiction
  • Application for warrant of arrest under Family Law Act 1996, Pt IV, s 47(8)
  • Application for forced marriage protection orders
  • Application for judicial review
  • Urgent appeal against an order by magistrates for transfer of residence of a child
  • Application to extend or restrict publicity
  • Application in respect of mentally ill persons
  • Applications concerning domestic and international child abduction
  • The impact of the Hague Convention 1996 on the Protection of Children
  • Applications under TOLATA and MFP Act 1984 Part III
  • General introduction on procedure under the FPR 2010
 Emergency Remedies in the Family Courts has a unique format comprising four parts:

  • Key Page - A quick reference guide to the appropriate application, who can apply and in which court the application must be made
  • Procedural Guide - Takes you step-by-step through each stage of an application and cross-refers you to the relevant rules of court
  • Precedents - Includes all documentation needed for each application
  • Law and Practice - These sections present unrivalled advice from a team of experts giving you a full understanding of the applicable law
 PracticePlus
 The online version of this looseleaf is part of PracticePlus - Find out more
 

  • Applications under the Children Act 1989
  • Wardship and the Inherent Jurisdiction
  • Adoption
  • Child Abduction: Registration and Enforcement
  • Personal Protection and Occupation of the Family Home
  • Protection of Family Property
  • Restriction of Publicity
  • Protection of the Mentally and Physically Infirm
  • Appeals Including Stay of Execution and Bail
  • Civil Partnership
  • Appendices
  • Emergency Contact Details
----------------
 Find out more about the scope of the work and how to use it
 ----------------
Find out what is in the latest update
"A very good tool for the busy family lawyer"
 
Solicitors Journal
The third edition of Emergency Remedies in the Family Courts, in loose-leaf form, is intended, like the previous editions, to meet the practical needs of family law practitioners. Among the helpful suggestions received from users and adopted in this edition is the change to loose-leaf. The continuing changes in family law and procedures, some by statute or rules of court and some evolutionary, make it difficult for courts and practitioners to keep up to date. Users of the book, including teachers of family law, have persuaded the authors and publishers that the book will be more useful if the latest developments are regularly incorporated.

 The second edition of this book included a page headed ‘The Book and How to Use it’, which said ‘Experienced practitioners often guide a less experienced assistant or colleague by giving him or her a precedent to adapt and explaining the sequence of steps which need to be taken’. The Preface to the second edition said the book ‘is designed to enable a busy family law practitioner in private practice or employed by a local authority, easily to find a precedent for an emergency application to an appropriate court. Procedural guides facilitate pursuit of each application. Explanatory texts help to understand what can be achieved in an application and to justify what the practitoner seeks if he is questioned by the court. Best practice is the model’.

 The goal of the third edition is to build on the strengths of the earlier editions, carrying forward the same practical approach.

 The personal protection material (Division E) has been updated on the basis of the present law. The revisions for the new law and practice under the Family Law Act 1996 will be distributed in time for the commencement of Part IV of the Act, which is expected to be in October 1997.

 The spectrum of experience of the team of authors is the source from which the book draws its strength and I thank each of them for their positive and committed contributions. My thanks are also due to David Burrows for providing the material for Appendix 1; Peter Harris, the Official Solicitor, for contributing Appendix 5; Ruth Few, Clerk of the Rules, Family Division, for helpful suggestions for improvements in ‘Procedure on appeal from magistrates’ in Division I; Mrs Melanie Perara for the application for displacement of nearest relative in Division H and to District Judge Roger Bird for reviewing some of the precedents.

 Nigel Fricker
 July 1997
The courts exercising the family jurisdiction can only operate usefully if the lawyers and public who use them understand their procedures. The difference between an order which leads to an effective result and one which does not may depend, particularly in an emergency, upon making the correct application to the right court supported by the relevant information. All the courts, including those dealing with family law, are engaged in the process of streamlining the procedures with a view to saying delays in hearing cases, avoiding complexity and reducing unnecessary costs of litigation. Practitioners have to be well aware of the changes in the rules and practice directions of the courts.

 The third edition of this invaluable book brings up to date the procedures of all the relevant family courts and continues to guide those using the book, step by step, by clear and easy to follow instructions. It is a must for all practitioners, whether their practice of family law is regular or infrequent.

 The Right Hon Lady Justice Butler-Sloss DBE
 January 1997
General Editor Her Honour Nasreen Pearce

Founding Editor 
His Honour Nigel Fricker QC

Contributors


David Burrows Solicitor Advocate, Bristol

District Judge Susan Jackson County Court at Central London and the Family Court at Croydon and Nominated Judge of the Court of Protection

David Salter Joint National Head of Family Law, Mills & Reeve LLP, Leeds, Manchester, Cambridge, Norwich, Birmingham and London and Deputy High Court Judge and Recorder

Lisa Phillips Director and Solicitor Advocate, Child Care Law Department, Switalskis Solicitors LLP, Leeds

Jeremy Weston QC St Ives Chambers, Birmingham

Extract from E13 Female genital mutilation

[13.1] 
Background Information

Female genital mutilation (FGM) when committed against a child is child abuse and in relation to both a girl and an adult woman is a form of violence. It has serious and significant physical, emotional, psychological and mental health consequences which are both short term and long term. It should therefore never be tolerated, overlooked, accepted or excused. It is a criminal offence under the Female Genital Mutilation Act 2003 (see below [13.6]). There is also no place for political correctness in dealing with, and tackling, the issue – even at the risk of being labelled a ‘racist' or discriminatory. Its unacceptance in any civilised society has been described in a number of cases, eg in Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] 1 FLR 308 Munby LJ (as he then was) stated that it was a ‘barbarous' practice; Auld LJ described it as an ‘evil practice internationally condemned and in clear violation of Art 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950' in Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680, [2005] 2 FLR 1085. In B and G (Children) (No 2) [2015] EWFC 3 Sir James Munby President repeated what he had said in Singh and referring to his observations in NS v MI [2006] EWHC 1646 (Fam), [2007] 1 FLR 444 in relation to forced marriage he said that every word that he had there used in relation to forced marriage ‘applies with equal force to FGM' (para [57]), ie

‘[3] Forced marriages … are utterly unacceptable. I repeat what I said in Re K, A Local Authority v N [2005] EWHC 2956, (Fam) [20071 1 FLR 399, at para [85]:
“Forced marriage is a gross abuse of human rights. It is a form of domestic violence that dehumanises people by denying them their right to choose how to live their lives. It is an appalling practice. [I then quoted what I had said in Singh before continuing] No social or cultural imperative can extenuate and no pretended recourse to religious belief can possibly justify forced marriage.”

[4] Forced marriage is intolerable. It is an abomination. And, as I also said in Re K, at paras [87]–[88], the court must bend all its powers to preventing it happening. The court must not hesitate to use every weapon in its protective arsenal if faced with what is, or appears to be, a case of forced marriage.'

And at para [68] the President said ‘In my judgment, any form of FGM constitutes “significant harm” within the meaning of sections 31 and 100' (see further under [13.6]).
It is estimated that approximately 134,000 women and girls living in England and Wales are living with the consequences of FGM. The likelihood is that the actual figure is much higher because it is difficult to make a realistic estimate due to the hidden nature of the abuse amongst those who have migrated to England and Wales and its continued practice on girls born in this country. It is more prevalent in areas with larger communities from those countries where FGM is part of the social and cultural structure of the community. Demographic and Health Survey and other national surveys 1997–2012 indicated that in the UK it is concentrated in larger cities such as London, Cardiff, Birmingham, Manchester, Sheffield, Northampton and other town and cities with a high migrant community.

FGM is more prevalent in African, some Middle Eastern and Asian countries. The World Health Organisation (WHO) estimates that between 100 and 140 million girls and women worldwide have experienced FGM and about 3 million girls some form of the procedure each year in Africa alone. (See The Multi Agency Guidance on FGM for a diagram of the prevalence of FGM across the globe).

Many explanations are advanced in support of the practice of FGM. The reasons given are often linked to the social, cultural and traditional elements of the society in which the family has lived and have a sense of belonging. Much of it is related to the position a woman is held in the community and her responsibility to bring and maintain the honour of the immediate and wider extended family within the community. Hence, it becomes an issue of status, respect and honour both for the girl/woman within that community and the eligibility of marriage. Reasons of cleanliness and hygiene are also put forward in support of the practice. Some communities believe that it is a religious requirement, eg in Muslim communities. However, this is not supported by learned religious bodies and authorities ...

[13.2]



---------------------------------------------------------------------------------------------------------

Extract from Division E Personal protection and occupation of the family home

E[16.1] SECTION 1: INTRODUCTION TO DIVISION E


Urgent remedies under Part IV of the Family Law Act 1996 and by

injunctions against torts

PartIV of the Family Law Act 1996 (FLA 1996), implemented on 1 October 1997,
providesa comprehensive code for applications for orders for personal protection from
molestationby a member of the family or other ‘associated person’, and for occupation
of afamily home. The provisions relating to non-molestation orders and inparticular
theability of the court to attach a power of arrest to such an order wassubstantially
alteredby the provisions of the Domestic Violence Crime and Victims Act 2004, which
cameinto force on 1 July 2007. The result of these changes is that breach of a
non-molestationorder is now enforced through criminal proceedings in the
magistrates’court and, as a result, the court no longer has the power to add a power of
arrestto a non-molestation order. Applications may be brought either as
‘free-standing’applications or ancillary within subsisting family proceedings. Division
Edeals primarily with emergency and urgent applications brought under the FLA
1996.

Thereremain cases of harassment and violence between persons who have or have
had apersonal relationship akin to a family relationship but who are not included in
theclass of associated persons eligible under the Act, and which may be remediedby
injunctionsmade in actions founded in common law torts or the statutory tort of
harassmentunder the Protection from Harassment Act 1997. Division E deals with
tortsat Applications E7 and E8 and in Section 4 of the Law and Practice at [16.48].

E[16.2A] Applications under Part IV of the Family Law Act 1996 maybe

‘free-standing’ or made within family proceedings

Mostapplications for personal protection or regulation of occupation of the family
homeunder the 1996 Act will be ‘free-standing’, but protection under the Act isalso
availableon applications made within other family proceedings. In particular,
sometimesan order under the powers in the FLA 1996 for protection of children is
appropriatewithin proceedings under the Children Act 1989 (see Division A). The
courtmay make a non-molestation order in other family proceedings whether or not a
formalapplication has been made and, in appropriate cases, of its own motion (FLA
1996,s 42(2)).

E[16.3] New single Family Court jurisdiction

TheFamily Law Act 1996, Part IV, followed the approach of the Children Act 1989 in
creating,with small exceptions, a structure of unified remedies and procedures
availablein the High Court, county courts and family proceedings courts. With effect
from22 April 2014, s 17 of the Crime and Courts Act 2013 came into force creating a
singleFamily Court. The aim is to facilitate an exclusive forum for family cases. The
legislationand related regulations seeks to co locate the jurisdiction of the family
proceedingscourt, the county court and High Court as those powers relate to Children
Actcases but the intention is to incorporate the entire family jurisdiction infuture.
Applicationsunder FLA 1996 for protection from domestic abuse are included in the
newarrangements ...

Scope of the Work and How to Use it

Aim of the work

Experienced practitioners often guide a lessexperienced assistant or colleague by giving him or her a precedent to adaptand explaining the sequence of steps which need to be taken. When the practiceand procedure is overhauled as under the FPR 2010 even the experienced need ahelping hand. This publication aims to offer illustrative, fictional,precedents and procedural guides to demonstrate how to launch emergencyapplications under the new rules and practice directions using the appropriateprescribed forms and bring them to a satisfactory result, seeking remedies thatare appropriate for the needs of the client. Further, the precedents,procedural guides and narrative explanations of law and practice give easyaccess to a practitioner, a judge or a magistrates’ clerk who needs quickly tocheck whether an application is proceeding in the right direction.

Structure of the illustrative precedents andprocedural guides

Each set of precedents begins with a Key Page, which summarises theprincipal characteristics of an application and acts as an index to the set ofprecedents and the supporting narrative text. The procedural guide that followssummarises the sequence of steps to be taken, with references to the rules ofcourt that apply.

Narrative texts of law and practice

The authors have sought to balance the need bypractitioners for a book that affords explanation of most situations that arelikely to arise in an emergency.

Gender

Throughout this publication, the gender usedreflects the situation that occurs most commonly in practice. Unless thecontrary appears, references to either the female or male gender areinterchangeable.

Looseleaf updating

The looseleaf arrangement of Emergency Remedies in the Family Courtsenables the book to be kept regularly up to date by the removal and insertionof updating pages. These are supplied at least twice per year in the form of Updates. Each Update is accompanied by filing instructions, which should be followedcarefully to ensure that your book is fully and correctly updated. At the endof the binder you will find a Filing Record, which should be completed eachtime an Update has been filed. AChecklist of Pages is sent with each Update,which should be used to check that your copy of Emergency Remedies in the Family Courts is complete and has beencorrectly updated. The Checklist should then be filed at the back of thebinder.

Arrangement of the work

The material is divided into 11 Divisions, eachseparated by plastic divider cards, as follows:

Gen  Generalintroduction on procedure
A  Applicationsunder the Children Act 1989
B  Wardshipand the inherent jurisdiction
C  Adoption
D  Childabduction: registration and enforcement
E  Personalprotection and occupation of the family home
F  Protectionof family property
G  Restrictionof publicity
H  Protectionof the mentally and physically infirm
I  Appealsincluding stay of execution, bail and judicial review
J  Civilpartnership
K  Emergencycontact details.

The applications that are dealt with in eachDivision are listed in full both in the main contents to the work and at thestart of each Division.

Paragraph numbering

The text is divided into numbered paragraphs.Cross-references to material in other Divisions are to paragraph numbers inthose Divisions. For example, a reference to A[23.16] directs the reader to paragraph [23.16] in Division A.Where no letter appears, the reference is to a paragraph within the sameDivision.

Tables and index

The work contains tables of cases, statutes andstatutory instruments. These are located behind the plastic divider card markedTables.
A comprehensive index is included to facilitateeasy access to the material in the book. This is to be found at the end of thebinder.

Subscription and editorial enquiries

Please address any queries relating to yoursubscription to Customer Services, Jordan Publishing Limited,21 St Thomas Street, Bristol BS1 6JS. Tel 0117 918 1492, Fax 0117 9250486. Requests for missing pages or notification of change of address should bemade on the relevant page supplied at the back of the Binder.

Queries relating to the content of the workshould be directed to The Commissioning Editor, Emergency Remedies in the Family Courts, at the above address.

Civil Procedure Rules 1998

The Civil Procedure Rules 1998 (CPR) wereintroduced on 26 April 1999. All civil proceedings are subject to these rules.‘Family proceedings’, as defined by the rules (see below), are exempt from theCPR (CPR, r 2.1(2)) with the following exceptions:
(1)Costsrules under CPR Parts 43, 44, 47 and 48 apply to all familyproceedings.
(2)CPR Part 52(appeals to the Court of Appeal) applies to all family proceedings from 2 May2000.

Rules in family proceedings

Subject to these exceptions, family proceedingsare now covered by the FPR 2010 and the Practice Directions, which togetherprovide a single procedural code, which applies to all levels of courts.

The Rules of the Supreme Court 1965 (RSC) (HighCourt) and the County Court Rules 1981 (CCR) (county courts), apply tofamily proceedings where they are specifically provided for in the FPR 2010 andwhere they are not inconsistent with the new rules.

Thus, for example, committal in the county courtwill still be covered by CCR Ord 29.

‘Family proceedings’: a definition

(1)
Narrow definition

‘Family business’ is defined in the Matrimonialand Family Proceedings Act 1984, s 32 as ‘business of any descriptionwhich in the High Court is for the time being assigned to the Family Divisionand to no other Division by or under section 61 of (and Schedule 1to) the Senior Courts] Act 1981’ and family proceedings is defined as‘proceedings which are family business’.

Senior Courts Act 1981, Sch 1 providesa narrow list of family proceedings, including matrimonial causes and variouschildren proceedings ...
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Update 40 (September 2015) 

This update contains general updating and additional material in almost all divisions to reflect developments in law and procedure since the last update to ensure that professionals readily have all they need to prepare for, make and pursue an application in an emergency in family cases.

  • Division A (Applications under the Children Act 1989) has been further restructured and revised.
  • Division B (Wardship and the Inherent Jurisdiction) sets out new precedents for: applications in cases concerning the risk of children travelling to join or suspected of joining ISIS; and standard electronic tagging orders and combined electronic and GPS tagging orders following Re X (Children) and Y (Children) [2015] EWHC 2358 (Fam). The ‘Law and Practice’ section deals further with: the exercise of the court’s inherent jurisdiction to protect children who are outside the jurisdiction and the court’s jurisdiction to grant super injunctions where appropriate, eg Re M (Children) [2015] EWHC 1433 (Fam) and also with the restriction on the grant of general and wide orders (Redbridge LBC v SNA [2015] EWHC 2140 (Fam); tagging orders; and the court’s power to overrule the decisions of a Gillick -competent child in medical cases.
  • Division C (Adoption) has been revised and updated to include withdrawal of consent and applications for injunction and recovery orders.
  • Division D (Child Abduction: Registration and Enforcement) has been revised to include disclosure of orders to embassies, consulates and the Foreign and Commonwealth Office. The ‘Law and Practice’ section deals with the guidance given by the Supreme Court on the test for habitual residence and in particular in AR v RN [2015] UKSC 35 and whether habitual residence of a child can be changed unilaterally. It also covers extension of the test for the defence of physical and psychological harm and the principles laid down by the Court of Appeal in Re M (Republic of Ireland) [2015] EWCA Civ 26, Re S (Habitual Residence and Child’s Objections: Brazil) [2015] EWCA Civ 2 and the very recent case of Re N (Children), 13 August 2015, in relation to the weight to be applied to a child’s objections and the joinder of children as parties. Of importance is the disapproval of the decision in Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 and the court’s powers under FPR 2010, rr 12.3 and 16.2 to direct that a child should be made a party. The section also deals with the enforcement of court orders. All relevant European Conventions and Regulations can now be found in one place under a dedicated section. Of particular importance is the jurisdiction under Art 15 to transfer cases and this section deals comprehensively with all issues relating to the relationship between the Hague Conventions and BIIR.
  • Division E (Personal Protection and Occupation of the Family Home) now includes material on: legal aid, dealing with recent case-law on the interpretation of LASPO, s 10; the drafting of orders; a separate section covering all methods of the enforcement of orders; and dedicated sections dealing in detail with the law, practice and procedure in relation to FMPOs and FGMPOs.
  • Division G (Restriction of Publicity) has been updated to include reporting restriction orders and non-disclosure orders.
  • Division I (Appeals) now deals specifically with relevant information on appeals based on ‘Wrong in the exercise of the court’s discretion and procedural irregularities’. It has also been expanded to include: application for permission; appeals against case management decisions; and split trials.

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