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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 call our account management team today on +44 (0)117 918 1555 or email them at trial@familylaw.co.uk.

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
 



Print Subscription Information
£435.00 mainwork (includes mainland UK p&p, there is an additional charge for non-UK mainland p&p)
2 updates per year Annual subscription March - February
Annual renewal approx £363.00
  • 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

Part IV of the Family Law Act 1996 (FLA 1996), implemented on 1 October 1997,
provides a comprehensive code for applications for orders for personal protection from
molestation by a member of the family or other ‘associated person’, and for occupation
of a family home. The provisions relating to non-molestation orders and in particular
the ability of the court to attach a power of arrest to such an order was substantially
altered by the provisions of the Domestic Violence Crime and Victims Act 2004, which
came into force on 1 July 2007. The result of these changes is that breach of a
non-molestation order 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
arrest to a non-molestation order. Applications may be brought either as
‘free-standing’ applications or ancillary within subsisting family proceedings. Division
E deals primarily with emergency and urgent applications brought under the FLA
1996.

There remain cases of harassment and violence between persons who have or have
had a personal relationship akin to a family relationship but who are not included in
the class of associated persons eligible under the Act, and which may be remedied by
injunctions made in actions founded in common law torts or the statutory tort of
harassment under the Protection from Harassment Act 1997. Division E deals with
torts at 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 may be

‘free-standing’ or made within family proceedings

Most applications for personal protection or regulation of occupation of the family
home under the 1996 Act will be ‘free-standing’, but protection under the Act is also
available on applications made within other family proceedings. In particular,
sometimes an order under the powers in the FLA 1996 for protection of children is
appropriate within proceedings under the Children Act 1989 (see Division A). The
court may make a non-molestation order in other family proceedings whether or not a
formal application has been made and, in appropriate cases, of its own motion (FLA
1996, s 42(2)).

E[16.3] New single Family Court jurisdiction

The Family 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
available in the High Court, county courts and family proceedings courts. With effect
from 22 April 2014, s 17 of the Crime and Courts Act 2013 came into force creating a
single Family Court. The aim is to facilitate an exclusive forum for family cases. The
legislation and related regulations seeks to co locate the jurisdiction of the family
proceedings court, the county court and High Court as those powers relate to Children
Act cases but the intention is to incorporate the entire family jurisdiction in future.
Applications under FLA 1996 for protection from domestic abuse are included in the
new arrangements ...

Scope of the Work and How to Use it

Aim of the work

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. When the practice and procedure is overhauled as under the FPR 2010 even the experienced need a helping hand. This publication aims to offer illustrative, fictional, precedents and procedural guides to demonstrate how to launch emergency applications under the new rules and practice directions using the appropriate prescribed forms and bring them to a satisfactory result, seeking remedies that are appropriate for the needs of the client. Further, the precedents, procedural guides and narrative explanations of law and practice give easy access to a practitioner, a judge or a magistrates’ clerk who needs quickly to check whether an application is proceeding in the right direction.

Structure of the illustrative precedents and procedural guides

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

Narrative texts of law and practice

The authors have sought to balance the need by practitioners for a book that affords explanation of most situations that are likely to arise in an emergency.

Gender

Throughout this publication, the gender used reflects the situation that occurs most commonly in practice. Unless the contrary appears, references to either the female or male gender are interchangeable.

Looseleaf updating

The looseleaf arrangement of Emergency Remedies in the Family Courts enables the book to be kept regularly up to date by the removal and insertion of 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 followed carefully to ensure that your book is fully and correctly updated. At the end of the binder you will find a Filing Record, which should be completed each time an Update has been filed. A Checklist 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 been correctly updated. The Checklist should then be filed at the back of the binder.

Arrangement of the work

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

Gen  General introduction on procedure
A  Applications under the Children Act 1989
B  Wardship and the inherent jurisdiction
C  Adoption
D  Child abduction: registration and enforcement
E  Personal protection and occupation of the family home
F  Protection of family property
G  Restriction of publicity
H  Protection of the mentally and physically infirm
I  Appeals including stay of execution, bail and judicial review
J  Civil partnership
K  Emergency contact details.

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

Paragraph numbering

The text is divided into numbered paragraphs. Cross-references to material in other Divisions are to paragraph numbers in those 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 same Division.

Tables and index

The work contains tables of cases, statutes and statutory instruments. These are located behind the plastic divider card marked Tables.
A comprehensive index is included to facilitate easy access to the material in the book. This is to be found at the end of the binder.

Subscription and editorial enquiries

Please address any queries relating to your subscription to Customer Services, Jordan Publishing Limited, 21 St Thomas Street, Bristol BS1 6JS. Tel 0117 918 1492, Fax 0117 925 0486. Requests for missing pages or notification of change of address should be made on the relevant page supplied at the back of the Binder.

Queries relating to the content of the work should 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) were introduced on 26 April 1999. All civil proceedings are subject to these rules. ‘Family proceedings’, as defined by the rules (see below), are exempt from the CPR (CPR, r 2.1(2)) with the following exceptions:
(1)Costs rules under CPR Parts 43, 44, 47 and 48 apply to all family proceedings.
(2)CPR Part 52 (appeals to the Court of Appeal) applies to all family proceedings from 2 May 2000.

Rules in family proceedings

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

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

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

‘Family proceedings’: a definition

(1)
Narrow definition

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

Senior Courts Act 1981, Sch 1 provides a narrow list of family proceedings, including matrimonial causes and various children proceedings ...
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Update 39 (March 2015) 

A year on from the ‘largest reforms of the family justice system any of us has seen or will see in our professional life time’, it was inevitable for this work to be overhauled to reflect the changes so as to continue to provide the professionals working in the area of emergency applications in the Family Courts with easy-to-follow, efficient and speedy access to all the relevant material for the preparation and presentation of such cases. This update sets out the up-to-date law, practice and step-by-step guide to the procedure for making such applications and in particular precedents of the appropriate applications and orders including the standard and proposed standard orders in respect of each application.

Of particular significance are the following:

  • Division B – this division: (1) sets out all forms of the new collection and location order, proposed standard disclosure order, publicity and restriction of publicity order, orders in relation to medical treatment and withdrawal of life-sustaining treatment; and (2) deals with the competing Art 8 rights of the child and Art 10 rights of the media in relation to publicity. It specifically deals with issues relating to children under the age of 16 with particular reference to those indicated in Kings College Hospital v T and Others [2014] EWHC 3315; NHS Trust v Child B and Others [2014] EWHC 3486 and Re JA (Treatment: Child Diagnosed with HIV) [2014] EWHC 1135 (Fam); the Gillick-competent child and those over 16 as demonstrated in recent cases, eg NHS Foundation Hospital v P [2014] EWHC 1650 and NHS Trust v A,B,C and a Local Authority [2014] EWHC 1445 (Fam).
  • Division D – this division sets out the following. (1) It provides the precedent for the proposed standard disclosure of whereabouts order, attendance order, financial disclosure order, passport order, a new tagging order and sequestration order. It also sets out precedents for orders for the return and non-return of a child under the Hague Convention. (2) It gives information on the work of the Office of Head of International Family Justice and the Guidance given in N v K (Jurisdiction: International Liaison) (No 2) [2014] EWHC 507. (3) It covers the weight to be given to a child’s views and objection to a return as referred to in Kinderis v Kinderis (No 2) [2014] EWHC 693 and A v H [2014] EWHC 2938 (Fam). (4) It discusses the important but less-known provisions of Council Regulation (EU) No 1206/2001 in relation to the taking of evidence in civil and commercial matters and the procedure for taking evidence in other Member States are set out in detail. (5) It deals with the impact of BII Revised on the Hague Convention 1980 and in a separate section all relevant EU material is covered, including the recognition and enforcement of court orders made in Member States, transfer of proceedings under the Hague Convention 1996, Art 9 and BIIR, Art 15; interim stay of proceedings referred to in Bristol CC v AA and HA [2014] EWHC 1022 (Fam); Re M (BIIR: Art 15) [2014] EWCA Civ 152 and the guidance given in Leicester CC v S [2014] EWHC 1575 (Fam) and the prorogation of jurisdiction and the ruling of the CJEU on Arts 8, 12 and 15.
  • Division E – this division has been completely revised to include a separate section dealing with: (1) all the available enforcement measures to enforce breach of a court order; (2) recognition and enforcement of EU cross-border protection measures following the introduction of the Protection Measures Regulation 606/2013 and the accompanying FPR 2010, r 38, which came into force on 11 January 2015; (3) FMPO; and (4) FGM and the guidance given in the first FGM case in the Family Court of Re B and G (Children) (No 2) [2015] EWFC 3.
  • Division F – this division has been revised to set out the remedies provided for under a number of statutes and those available under the Senior Courts Act 1981 and the inherent jurisdiction of the High Court. It deals in detail with all that is needed in relation to freezing inunctions, including the principles that apply to the grant of worldwide freezing orders and permission to enforce orders overseas: Dadourian Guidelines and the guidance given in PJSC Vseukrainskyi Aktsionernyi Bank v Maksimov [2013] EWHC 422 (Comm) – pre-trial or post-judgment freezing order against a corporate body that is effectively a nominee for the respondent (known as ‘Chabra jurisdiction’); search orders, sequestration and Hemain injunction and charging orders.
  • Division G – restriction on publicity has been extended to include: applications under the inherent jurisdiction; provisions of Judicial Proceedings (Regulation of Reports) Act 1926, the Administration of Justice Act 1960, the Contempt of Court Act 1981, the Children Act 1989, s 97(2) and the Children and Young Persons Act 1933, s 39; the impact of Convention Rights; procedure under FPR Part 27 for reporting restrictions and the recent decisions in Rapisarda v Colladon [2014] EWFC 1406 and Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam).
  • Division H – this division has been revised specifically to deal with the protection of vulnerable adults who fall outside the mental health legislation.
  • Division I – this is now a dedicated section for appeals.
  • Division J – this is now a dedicated section for judicial review.

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