username

password

Harcourt Chambers1 Garden CourtHind Courtimage of 4 Paper Buildings logoCoram ChambersGarden CourtDNA Legalsite by Zehuti

Home > PDs & Guidance

Practice Direction: amending the Practice Direction supplementing Part 19 of the Family Procedure (Adoption Rules) 2005

This Practice Direction is made by the President of the Family Division under the powers delegated to him by the Lord Chief Justice under paragraph 2(2) of Schedule 2 to the Constitutional Reform Act 2005, and is approved by the Lord Chancellor.

Practice Direction: amending the Practice Direction supplementing Part 19 of the Family Procedure (Adoption Rules) 2005

1. The amendments in paragraphs 2 to 8 below to the Practice Direction supplementing Part 19 will come into force on 6th April 2009.

2. In paragraph 2.1 -

- for “High Court” in the first line of the second column of the Table substitute “a county court”; and
- in the note in brackets , substitute “,” for “and” and after “2005” insert “and the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009.”.

3. After paragraph 5.6 insert-

“5.6A Paragraphs 5.4 to 5.6 do not apply to an appeal to a county court under section 111A of the Magistrates’ Courts Act 1980.”.

4. In paragraph 5.23, for “where, in a magistrates’ court, reasons for the court’s decision are given in writing, a copy of those reasons.” substitute –

“-in a magistrates’ court, a copy of the written reasons for the court’s decision. The magistrates’ court will make a record in writing of the reasons for its decisions in all proceedings brought under the Adoption and Children Act 2002. The Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991 (rules 11 and 12) and the Family Proceedings Courts (Children Act 1989) Rules 1991 (rules 20 and 21) already require the justices’ clerk in consultation with the justice or justices to record in writing the reasons for the court’s decision and for the justices’ clerk to keep a written note of the substance of oral evidence given at a hearing. Proceedings to which those rules apply include proceedings under the Children Act 1989 and those under the Domestic Proceedings and Magistrates’ Courts Act 1978. The requirement for the magistrates’ court to give written reasons for its decision is not to be restricted to those proceedings covered by those rules but is to apply to all proceedings brought
under the Adoption and Children Act 2002. A Practice Direction coming into force on 6th April 2009 and made by the Lord Chief Justice relating to written reasons in proceedings related to family proceedings includes provision to the effect that the magistrates’ court will make a record in writing of the reasons for its decisions in all proceedings for the purpose of enforcing an order made in any proceedings under the Adoption and Children Act 2002.”.

5. In paragraph 5.30, for “the appellant must file” substitute “Subject to paragraph 5.30A, the appellant must file”.

6. After paragraph 5.30 insert

"5.30A Where the appeal is to a judge of a county court under section 111A of
the Magistrates’ Courts Act 1980, the appellant’s notice must be filed and served
within 21 days after the day on which the decision of the lower court was given.”.

7. After paragraph 7.19 insert-

The application of the rules in Part 19 to appeals under section 111A of the Magistrates’ Courts Act 1980 (“the 1980 Act”) from a magistrates’ court to a county court on the ground that the decision is wrong in law or in excess of jurisdiction

8.A1. As a result of an amendment to section 111 of the 1980 Act by the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 (“the Destination Order”) an application to have a case stated for the opinion of the High Court under section 111 of that Act may not be made in relation to family proceedings. Family proceedings for those purposes are defined as—

(a) proceedings which, by virtue of section 65 of the 1980 Act, are or may be treated as family proceedings for the purposes of that Act; and
(b) proceedings under the Child Support Act 1991.

Proceedings for the purpose of enforcing an order made in any proceedings under the Adoption and Children Act 2002 are included in this definition.

8.A2. Section 111A of the 1980 Act, which is inserted by article 4(3) of the Destination Order, provides that in family proceedings as defined in paragraph 8.A1 above a person may appeal to a county court on the ground that a decision is wrong in law or is in excess of jurisdiction; this appeal to a county court replaces the procedure for making an application to have a case stated. The reference in rule 171(3) to an “appeal” including an appeal by way of case stated will no longer be needed. Section 111A(3)(a) provides that no appeal may be brought under section 111A if there is a right of appeal to a county court against the decision otherwise than under that section. Section 111A does not apply where there is a statutory right of appeal to a county court under section 94 of the Children Act 1989.

8.A3. The following rules in Part 19 apply to appeals under section 111A subject to section 111A of the 1980 Act -

- rule 171 except the reference to appeals by way of case stated ;
- rule 172;
- rule 174 subject to section 111A(4) of the 1980 Act which provides that the notice of appeal must be filed within 21 days after the day on which the decision of the magistrates’ court was given; and
- rules 177 and 178.

8.A4. The appellant’s notice should be served within 21 days after the day on which the decision of the magistrates’ court was given.”.

8. For the heading to paragraphs 8.1 to 8.4 and paragraphs 8.1 to 8.3 substitute-

APPEALS TO A COUNTY COURT FROM THE DECISION OF A MAGISTRATES’ COURT
8.1. Paragraphs 8.2 to 8.3B apply where an appeal lies to a county court from a decision of a magistrates’ court under section 94 of the Children Act 1989 and paragraph 8.2 also applies to appeals under section 111A of 1980 Act.

8.2. The appellant’s notice must be filed in an adoption centre or an intercountry adoption centre within the meaning of article 2 (c) and (d) of the Allocation and Transfer of Proceedings Order 2008.

8.3 A respondent’s notice must be filed at the court where the appellant’s notice was filed.

8.3A. Where the appeal is an appeal from a decision of a magistrates’ court under section 94 of the 1989 Act , the appellant’s notice and accompanying documents may be filed in the principal registry of the Family Division of the High Court.

8.3B. Article 11 of the Destination Order amends article 3 of the Allocation and Transfer of Proceedings Order 2008 to provide that the principal registry of the Family Division of the High Court is treated as a county court for the purposes of appeals from decisions of a magistrates’ court under section 94 of the Children Act 1989.

HIGH COURT: APPEALS FROM A DISTRICT JUDGE TO A JUDGE”.

-----------------------------------
The Right Honourable
Sir Mark Potter
The President of the Family Division
-----------------------------------
Parliamentary Under Secretary of State,
Ministry of Justice