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Family Procedure Rules 2010: A Guide to Private and Public Law Family Proceedings concerning Children

Clive Redley, Barrister, of Tooks Chambers, a member of the Family Procedure Rule Committee, provides a guide to the new Family Procedure Rules and their application to children applications, both Private Law and Public Law

Clive Redley, Barrister, Tooks Chambers

Clive Redley, Barrister, of Tooks Chambers, member of the Family Procedure Rule Committee 

Introduction
On 6th April the Family Procedure Rules 2010 come into effect .They are a body of rules which will encompass all courts from the Family Proceedings Court to the High Court Family Division and all family proceedings. There will no longer be a need to cross refer between rules such as the Family Proceedings Courts (Children Act1989) Rules 1991 or the County Court Rules 1981.

The Rules are supplemented by Practice Directions issued by the President of the Family Division. The number of each Practice Direction coincides with the Part of the Family Procedure Rules to which it relates, i.e. Part 12 deals with proceedings relating to children (excluding adoption) and Practice Directions 12A to 12P are the accompanying Practice Directions. In some circumstances practitioners will have to pay more attention to the Practice Directions than the particular rule. There is also an extensive suite of forms.
The intention of the Family Procedure Rules Committee has been to produce a set of Rules which are both comprehensive and comprehensible to both professionally qualified and lay court users. In effect, the Rules tell you what to do and the Practice Directions how to do it. The Committee will continue to meet after the implementation of the Rules and periodic amendments will be made to correct any errors outlined to it or to improve the effectiveness of the Rules or Practice Directions.

Headline Points for Children Lawyers  

The Rules
The overriding objective 
Those family law practitioners who also practise in non-family law civil proceedings will be familiar with the overriding principle which is fundamental to the Civil Procedure Rules. Likewise the new FPR are subject to an overriding objective

"of enabling the court to deal with cases justly, having regard to the 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."

Alternative dispute resolution
The provisions of Part 3 and the issue of Alternative Dispute Resolution (ADR) are very important. The court must consider at every stage of the proceedings whether ADR is appropriate and can adjourn the proceedings at any stage in order to enable the parties to engage in ADR. Practice Direction 3A contains the pre-application protocol on Mediation Information and Assessment. This in effect initiates ADR prior to the commencement of proceedings .Whilst the Legal Services Commission has previously tried to make consideration of ADR a pre-requisite of applying for public funding the protocol brings this into courts domain at the pre-proceedings stage. As stated in the PD the rationale is to acknowledge that an adversarial court process is not always best-suited to the resolution of family disputes, particularly private law disputes relating to children.

The Practice Direction sets out best practice to be followed by any person who is considering making an application to court for an order in relevant family proceedings. Relevant family proceedings are defined in Annex B of the PD and include most private law applications except emergency applications and applications for enforcement orders. The Pre¬-Action Protocol itself is set out in Annex A. Applicants will be expected to contact a family mediator to arrange the attendance at an information meeting about mediation or other forms of ADR. In the Protocol this is referred to as a "Mediation Information and Assessment Meeting". The applicant has to provide the mediator with the contact details of the prospective respondent so that that party can also be invited to attend a meeting .The respondent will be invited, if they agree, to either a joint meeting if appropriate or a separate meeting. Paragraph 8 of the Protocol  states that if after complying with the Protocol  any application is made to the court, the applicant should at the same time file a completed Family Mediation Information and Assessment Form  or FM1 confirming attendance at a Mediation Information and Assessment meeting or giving reasons for not having attended such a meeting.

Commencement of proceedings and service
Part 5
deals with the commencement of proceedings and Practice Direction 5A lists the individual forms required for each type of application. The requirements for service are addressed in Part 6 and by Practice Directions 6A, 6B and 6C. The methods of service are outlined at Rule 6.23 which includes service by electronic mail if this is agreed. Any agreement to accept service by electronic mail must have been agreed in writing by the receiving party to be effective and may be limited by the recipient in  respect of the format and size of attached documents (PD 6A paras 4.1-4.4).

Rules applicable to children applications
Practitioners specialising in proceedings which relate to children and their welfare will be primarily concerned with the provisions of Parts 12 and 14.

Part 12 deals with Emergency Protection Orders, Section 8 and Section 31 applications, child abduction application and other Hague Convention applications. Part 14 outlines the procedures in relation to adoption.

Rule 12.4 addresses the issue of persons who it is believed to have foreign parental responsibility and the obligations to make attempts to serve them.

Practice directions 12A and 12B concern Public and Private Law proceedings regarding children and are in essence the Public Law Outline and the Private Law Programme. Thus these two procedural initiatives have been incorporated within the new Rules and are unaffected by the Rules. As far as procedures are concerned there are no substantial changes. The requirements for the service of applications and documents are set out in detail in Practice Direction 12C.

In the relation to the communication of information from proceedings relating to children to a third party, Chapter 7 of Rule 12 replaces the old Family Proceedings Rule 10.20A which itself was repealed in April 2009 and replaced by r.11.1-11.9 .The Rule is supplemented by Practice Direction 12G. This confirms the ability of parties to disclose information from proceedings in certain circumstances without falling  foul of the laws as to contempt of court. Examples of such circumstances when there is no need to obtain permission to disclose information are for the purpose of counselling or for disclosing experts' reports to an adoption panel.

The Rules in relation to adoption and placement applications are now found in Part 14 of the Rules and replace the Family Procedure (Adoption) Rules 2005. Details of what needs to be covered in reports on placement and adoption applications are set out in Practice Direction 14C. Similar provisions relating to the disclosure of information as outlined at Chapter 7 of Rule 12 are replicated in relation to adoption proceedings in Rule 14.14 and supplemented by Practice Direction 14E.

Rule 14.10(2) allows the court to give directions as to the way in which consent to a child being placed for adoption or as to the making of a future adoption order can be given if either of the forms (A100 and A103) are not used.

Parties who lack capacity, now known as protected parties, and their representation are dealt with in Part 15 of the Rules. As the Rules apply to all courts it would seem that the family proceedings courts no longer need to transfer matters up to county court level where a party lacks capacity and require the services of the Official Solicitor. In keeping with the philosophy of employing user friendly language, the terms 'next friend' and 'Guardian ad Litem' are no longer used. Protected parties are assisted by a Litigation Friend and the former Guardian ad Litem is now a 'Children's Guardian'.

The representation of children in both Private and Public Law proceedings is now covered by Part 16 and Practice Direction 16A. In non-specified proceedings, therefore most private law cases or cases involving the exercise of the court's inherent jurisdiction, a child can be made a party to proceedings under rule 16.2 .Practice Direction 16A sets out the matters which the court will take into consideration before making a child a party (see PD 16 Part 4 para.7.1). Since Rule 16.2 replaces Family Proceedings Rules rule 9.5 and the new rules are applicable to all courts, there is no longer a need to transfer private law proceedings up to county court level when a child is made a party to the proceedings and a Children's Guardian is appointed. Rule 16.3 provides for the appointment of a Children's Guardian in specified proceedings unless there is a reason not to do so as outlined in Rule16.6 (3).

Statements of Truth
Certain documents as outlined in Part 17 must be verified by a Statement of Truth. The consequence of not including a Statement of Truth in a Statement of case or a witness statement is that a party who adduces it cannot rely upon its contents unless the court allows that party to do so. The form or wording of a Statement of Truth is set out in PD 17 A 2.1 to 2.3.

Conduct of Hearings
In relation to the conduct of hearings Part 22 sets out the powers of the court to control the way in which evidence is given. Rule 22.1 expressly sets this out:  

"The court may control the evidence by giving directions as to a)the issues on which it requires evidence; b)the nature of the evidence which it requires to decide those issues; and c)the way in which the evidence is to be placed before the court."

Part 22.2 effectively restricts the giving of oral evidence to final hearings. Witnesses' evidence at interim hearings should be proved by their written evidence. However, this restriction on the use of oral evidence at interim hearings does not apply to secure accommodation applications or interim care and supervision applications (Part 22.2.(2)). Additionally, where an enactment provides for the giving of oral evidence at an interim stage then the rules do not apply. For example, s.45 (7) of the Children Act provides in applications for Emergency Protection Orders for the court to take account of "  a) any statement contained in any report made to the court in the course of, or in connection with the hearing or b) any evidence given during the hearing ."

Expert evidence
With the proliferation in the amounts paid to experts from the Civil Public Funding budget the court is given some assistance in trying to stem this increase.  Part 25.1 imposes a duty to 'restrict expert evidence to that which is reasonably required to resolve the proceedings.' The prohibition on calling expert evidence without prior permission from the court is reiterated at Part 25.4. Additionally to avoid  both the delay in the instruction of the expert and the taking up of too much court hearing time procedures are outlined in the PD as to best practice in applying to instruct an expert. Paragraph 4 outlines  what preliminary enquiries should be made by a party's solicitor of the expert and what confirmations should be obtained from the expert. In Care proceedings this should be done in time for the Case Management Conference and in private proceedings in time for the First Hearing Dispute Resolution Appointment. If the application is to be made the applicant's lawyer shall file, by 11.00 am on the business day before the relevant hearing, a written proposal for the instruction which should include the details set out at paragraph 4.3 of the PD. These include the expert's hourly rate and details of why he or she is to be instructed. Secondly the applicant's lawyer needs to provide at the same time a draft order for directions. If the application is successful then the Letter of Instruction must be prepared (in agreement with all relevant parties), filed and served within 5 business days of the hearing. General guidance is given as to how the letter should be formatted at paragraph 4.5. If there is disagreement as to the content of an expert's letter of instruction, where a single joint expert is to be instructed, Part 25.8(2) allows the court to determine the content on the application of any relevant party so long as the other parties are notified. The court can also limit the amount to be paid to an expert (Part 25.8(5)). If a party does not wish to be liable for the fees of a single joint expert then clarification in the form of a direction is needed; otherwise the relevant parties are jointly and severally liable for the expert's fees and expenses. In order to further assist practitioners when instructing experts, the PD 25A provides suggested questions for letters of instructions for child mental health professionals and paediatricians and also Adult psychiatrists and psychologists. Theses suggested questions are drafted by the Family Justice Council and are set out in an annex to the Practice Direction.

As an added attempt to avoid experts having to give oral evidence at a final hearing and therefore increasing costs, provision is made in Part 25.6 for any party to send written questions to the expert on receipt of his or her report. This must only be for the purpose of clarification, put only once and must be done within 10 days of receiving the expert's report. The court has discretion to direct otherwise, such as the time limit for any written questions to be put. The experts' answers are considered to be part of the original report. Experts can themselves now seek directions from the court for the purpose of assisting them with carrying out their functions. The arrangements for experts' meetings ,if they are necessary are given in paragraph 6.3.The arrangements should be made within 15 days of receipt of the experts report being received, although the meeting does not have to occur within this time scale. The agenda and questions for the meeting should be formulated by the solicitor who will chair the meeting no later than  5 days before the meeting and sent to the attending experts no later than two days before. Following the meeting a Statement of Agreement and Disagreement should be prepared and signed by each of the experts and filed and served within 5 days of the meeting taking place. Whether an expert is needed to give evidence at the Final Hearing should be fully discussed and decided at the Issues Resolution Hearing or some other date specified by the court. Following the Final Hearing the solicitor who instructed any expert called to the hearing shall within 10 days notify the expert of the outcome of the hearing and detail how his or her report was used by the court. If the court directs that there shall be a transcript of any Judgment then the court may also direct that a copy is sent to the expert. In the family proceedings court the direction may be made for written reasons for the courts decision  be sent to the expert. 

Practice Direction 25A incorporates and supersedes the Practice Direction on Experts in Family Proceedings relating to Children, after the 2010 Rules come into effect. Practitioners are strongly advised to comply with PD 25A when making any application to instruct an expert on behalf of a client.

Appeals
Part 30
and Practice Direction 30A deal with appeals. The Practice Direction comes into effect on the 6th April, the same day as the Rules generally. They set out the routes of appeal:  namely that appeals from District Judges in either the family proceedings court or the county court are to a Circuit Judge. However an appeal from a District Judge of the Principal Registry is to a High Court Judge. The general time limit for serving notice of appeal is 21 days. However if the appeal is from the decision of the family proceedings court to make an interim care order under section 38 (1) of the Children Act, then the limit is 7 days (Part 30.4 (3)). In keeping with the effort to use plain language, a party seeks permission, rather than leave, to appeal. It is essential that practitioners who seek to appeal a decision comply with both the Rules set out in Part 30 but more importantly the procedures set out in Practice Direction 30A.

Transitional arrangements
Practice Direction 36A
outlines the transitional arrangements .The general scheme is to apply the new Rules to existing proceedings, therefore those commenced before 6th April. Where this is not practicable then the previous applicable rules apply. If in existing proceedings a step has been taken under the old rules any response should also be taken under the old rules. If a step is taken in existing proceedings but occurs after 6th April, then the new rules apply.

Conclusion   
The new Rules do not change the substantive law as that was never the intention nor the remit of the Family Procedure Rule Committee. Such change is reserved for Parliament. Therefore, children lawyers, well-versed in the procedures of the Public Law Outline and the Private Law Programme, will continue to follow those schemes unless or until they are themselves amended. The intention was to provide an accessible source for all court users, be they qualified lawyers or litigants in person. The Overriding Objective as outlined in Part 1 is to try and ensure that cases are dealt with 'justly, having regard to any welfare issues involved'. The Rules are designed to assist all parties in achieving that aim. The overriding objective applies to all existing proceedings from the implementation of the rules on 6th April 2011.

Clive Redley
Barrister and member of the Family Procedure Rule Committee