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The Family Proceedings Rules 1991

Type Statutory-Instrument

Publication 1991-05-01

State In force

Department Queen's Printer of Acts of Parliament

Source legislation.gov.uk

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(2) An application for an avoidance of disposition order shall, if practicable, be heard at the same time as any related application for financial relief.

(3) Notice of the appointment, unless given in Form M11 or M13 (as the case may be), shall be given by the proper officer to every party to the application.

(4) At the hearing of an application for ancillary relief the district judge shall, subject to rules 2.64, 2.65 and I 0. I 0 investigate the allegations made in support of and in answer to the application, and may take evidence orally and may at any stage of the proceedings, whether before or during the hearing, order the attendance of any person for the purpose of being examined or cross-examined and order the discovery and production of any document or require further affidavits.

(5) The district judge may at any stage of the proceedings give directions as to the filing and service of pleadings and as to the further conduct of the proceedings.

(6) Where any party to such an application intends on the day appointed for the hearing to apply for directions, he shall file and serve on every other party a notice to that effect.

(7) Any party may apply to the court for an order that any person do attend an appointment (a “production appointment”) before the court and produce any documents to be specified or described in the order, the production of which appears to the court to be necessary for disposing fairly of the application for ancillary relief or for saving costs.

(8) No person shall be compelled by an order under paragraph (7) to produce any document at a production appointment which he could not be compelled to produce at the hearing of the application for ancillary relief.

(9) The court shall permit any person attending a production appointment pursuant to an order under paragraph (7) above to be represented at the appointment.

Request for further information etc

2.63

Any party to an application for ancillary relief may by letter require any other party to give further information concerning any matter contained in any affidavit filed by or on behalf of that other party or any other relevant matter, or to furnish a list of relevant documents or to allow inspection of any such document, and may, in default of compliance by such other party, apply to the district judge for directions.

Order on application for ancillary relief

2.64

(1) Subject to rule 2.65 the district judge shall, after completing his investigation under rule 2.62, make such order as he thinks just.

(2) Pending the final determination of the application, the districtjudge may make an interim order upon such terms as he thinks just.

(3) RSC Order 31, rule 1 (power to order sale of land) shall apply to applications for ancillary relief as it applies to causes and matters in the Chancery Division.

Reference of application to judge

2.65

The district judge may at any time refer an application for ancillary relief or any question arising thereon, to a judge for his decision.

Arrangements for hearing of application etc by judge

2.66

(1) Where an application for ancillary relief or any question arising thereon has been referred or adjourned to a judge, the proper officer shall fix a date, time and place for the hearing of the application or the consideration of the question and give notice thereof to all parties.

(2) The hearing or consideration shall, unless the court otherwise directs, take place in chambers.

(3) Where the application is proceeding in a divorce county court which is not a court of trial or is pending in the High Court and proceeding in a district registry which is not in a divorce town, the hearing or consideration shall take place at such court of trial or divorce town as in the opinion of the district judge is the nearest or most convenient.

For the purposes of this paragraph the Royal Courts of Justice shall be treated as a divorce town.

(4) In respect of any application referred to him under this rule, ajudge shall have the same powers as a district Judge has under rule 2.62(5).

Request for periodical payments order at same rate as order for maintenance pending suit

2.67

(1) Where at or after the date of a decree nisi of divorce or nullity of marriage an order for maintenance pending suit is in force, the party in whose favour the order was made may, if he has made an application for an order for periodical payments for himself in his petition or answer, as the case may be, request the district judge in writing to make such an order (in this rule referred to as a “corresponding order”) providing for payments at the same rate as those provided for by the order for maintenance pending suit.

(2) Where such a request is made, the proper officer shall serve on the other spouse a notice in Form M15 requiring him, if he objects to the making of a corresponding order, to give notice to that effect to the court and to the applicant within 14 days after service of the notice on Form M15.

(3) If the other spouse does not give notice of objection within the time aforesaid, the district Judge may make a corresponding order without further notice to that spouse and without requiring the attendance of the applicant or his solicitor, and shall in that case serve a copy of the order on the applicant as well as on the other spouse.

Application for order under section 37(2)(a) of Act of 1973

2.68

(1) An application under section 37(2)(a) of the Act of 1973 for an order restraining any person from attempting to defeat a claim for financial provision or otherwise for protecting the claim may be made to the district judge.

(2) Rules 2.65 and 2.66 shall apply, with the necessary modifications, to the application as if it were an application for ancillary relief.

PART III — OTHER MATRIMONIAL ETC PROCEEDINGS

Application in case of failure to provide reasonable maintenance

3.1

(1) Every application under section 27 of the Act of 1973[^f00024] shall be made by originating application in Form M19.

(2) The application may be made to any divorce county court and there shall be filed with the application an affidavit by the applicant and also a copy of the application and of the affidavit for service on the respondent.

(3) The affidavit shall state—

(a) the same particulars regarding the marriage, the court’s jurisdiction, the children and the previous proceedings as are required in the case of a petition by sub-paragraphs (a), (c), (d), (f) and (i) of paragraph 1 of Appendix 2;

(b) particulars of the respondent’s failure to provide reasonable maintenance for the applicant, or, as the case may be, of the respondent’s failure to provide, or to make a proper contribution towards, reasonable maintenance for the children of the family; and

(c) full particulars of the applicant’s property and income and of the respondent’s property and income, so far as may be known to the applicant.

(4) A copy of the application and of the affidavit referred to in paragraph (2) shall be served on the respondent, together with a notice in Form M20 with Form M6.

(5) Subject to paragraph (6), the respondent shall, within 14 days after the time allowed for sending the acknowledgement of service, file an affidavit stating—

(a) whether the alleged failure to provide, or to make proper contribution towards, reasonable maintenance is admitted or denied, and, if denied, the grounds on which he relies;

(b) any allegation which he wishes to make against the applicant; and

(6) Where the respondent challenges the jurisdiction of the court to hear the application he shall, within 14 days after the time allowed for sending the acknowledgement of service, file an affidavit setting out the grounds of the challenge; and the obligation to file an affidavit under paragraph (5) shall not arise until 14 days after the question of jurisdiction has been determined and the court has decided that the necessary jurisdiction exists.

(7) Where the respondent’s affidavit contains an allegation of adultery or of an improper association with a person named, the provisions of rule 2.60 (which deal with service on, and intervention by, a named person) shall apply.

(8) If the respondent does not file an affidavit in accordance with paragraph (5), the court may order him to,file an affidavit containing full particulars of his property and income, and in that case the respondent shall serve a copy of any such affidavit on the applicant.

(9) Within 14 days after being served with a copy of any affidavit filed by the respondent, the applicant may file a further affidavit as to means and as to any fact in the respondent’s affidavit which is disputed, and in that case the applicant shall serve a copy on the respondent.

No further affidavit shall be filed without leave.

(10) Rules 2.61 to 2.66 and rule 10.10 shall apply, with such modifications as may be appropriate, to an application for an order under section 27 of the Act of 1973 as if the application were an application for ancillary relief.

Application for alteration of maintenance agreement during lifetime of parties

3.2

(1) An application under section 35 of the Act of 1973[^f00025]for the alteration of a maintenance agreement shall be made by originating application containing, unless otherwise directed, the information required by Form M21.

(2) The application may be made to any divorce county court and may be heard and determined by the district judge.

(3) There shall be filed with the application an affidavit by the applicant exhibiting a copy of the agreement and verifying the statements in the application and also a copy of the application and of the affidavit for service on the respondent.

(4) A copy of the application and of the affidavit referred to in paragraph (3) shall be served on the respondent, together with a notice in Form M20 with Form M6 attached.

(5) The respondent shall, within 14 days after the time limited for giving notice of intention to defend, file an affidavit in answer to the application containing full particulars of his property and income and, if he does not do so, the court may order him to file an affidavit containing such particulars.

(6) A respondent who files an affidavit under paragraph (5) shall at the same time file a copy which the proper officer shall serve on the applicant.

Application for alteration of maintenance agreement after death of one party

3.3

(1) An application under section 36 of the Act of 1973 [^f00026]for the alteration of a maintenance agreement after the death of one of the parties shall be made—

(a) in the High Court, by originating summons out of the principal registry or any district registry, or

(b) in a county court, by originating application,

in Form M22.

(2) There shall be filed in support of the application an affidavit by the applicant exhibiting a copy of the agreement and an official copy of the grant of representation to the deceased’s estate and of every testamentary document admitted to proof and stating—

(a) whether the deceased died domiciled in England and Wales;

(b) the place and date of the marriage between the parties to the agreement and the name and status of the wife before the marriage;

(c) the name of every child of the family and of any other child for whom the agreement makes financial arrangements, and—

(i) the date of birth of each such child who is still living (or, if it be the case, that he has attained 18) and the place where and the person with whom any such minor child is residing,

(ii) the date of death of any such child who has died since the agreement was made;

(d) whether there have been in any court any, and if so what, previous proceedings with reference to the agreement or to the marriage or to the children of the family or any other children for whom the agreement makes financial arrangements, and the date and effect of any order or decree made in such proceedings;

(e) whether there have been in any court any proceedings by the applicant against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975[^f00027] or any Act repealed by that Act and the date and effect of any order made in such proceedings;

(f) in the case of an application by the surviving party, the applicant’s means;

(g) in the case of an application by the personal representatives of the deceased, the surviving party’s means, so far as they are known to the applicant, and the information mentioned in sub-paragraphs (a), (b) and (c) of rule 3.4(4);

(h) the facts alleged by the applicant as justifying an alteration in the agreement and the nature of the alteration sought;

(i) if the application is made after the end of the period of six months from the date on which representation in regard to the deceased’s estate was first taken out, the grounds on which the court’s permission to entertain the application is sought.

(3) CCR Order 48, rules 3(1), 7 and 9 shall apply to an originating application under the said section 36 as they apply to an application under section 1 of the Inheritance (Provision for Family and Dependants) Act 1975.

(4) In this rule and the next following rule “the deceased” means the deceased party to the agreement to which the application relates.

Further proceedings on application under rule 3.3

3.4

(1) Without prejudice to his powers under RSC Order 15^f00028, the district judge may at any stage of the proceedings direct that any person be added as a respondent to an application under rule 3.3.

(2) RSC Order 15, rule 13 (which enables the court to make representation orders in certain cases) shall apply to the proceedings as if they were mentioned in paragraph (1) of the said rule 13.

(3) Where the application is in a county court, the references in paragraphs (1) and (2) to RSC Order 15 and Order 15, rule 13 shall be construed as references to CCR Order 5 and Order 5, rule 6 respectively.

(4) A respondent who is a personal representative of the deceased shall, within 14 days after the time limited for giving notice of intention to defend, file an affidavit in answer to the application stating—

(a) full particulars of the value of the deceased’s estate for probate, after providing for the discharge of the funeral, testamentary and administration expenses, debts and liabilities payable thereout, including the amount of the estate duty and interest thereon;

(b) the person or classes of persons beneficially interested in the estate (giving the names and addresses of all living beneficiaries) and the value of their interests so far as ascertained, and

(c) if such be the case, that any living beneficiary (naming him) is a minor or a patient within the meaning of rule 9.1.

(5) If a respondent who is a personal representative of the deceased does not file an affidavit stating the matters mentioned in paragraph (4) the district judge may order him to do so.

(6) A respondent who is not a personal representative of the deceased may, within 14 days after the time limited for giving notice of intention to defend, file an affidavit in answer to the application.

(7) Every respondent who files an affidavit in answer to the application shall at the same time lodge a copy, which the proper officer shall serve on the applicant.

Application of other rules to proceedings under section 35 or 36 of Act of 1973

3.5

(1) The following rules shall apply, with the necessary modifications, to an application under section 35 or 36 of the Act of 1973, as if it were an application for ancillary relief—

(a) in the case of an application under either section, rules 2.60, 2.62(4) to (6), 2.63, 2.64, 2.6 5 and 10.10;

(b) in the case of an application under section 35, rule 2.66;

(2) Subject to paragraph (1) and to the provisions of rules 3.2 to 3.4, these rules shall, so far as applicable, apply with the necessary modifications to an application under section 35 or section 36 (as the case may be) of the Act of 1973, as if the application were a cause, the originating application or summons a petition, and the applicant the petitioner.

Married Women’s Property Act 1882

3.6

(1) Subject to paragraph (2) below, an application under section 17 of the Married Women’s Property Act 1882 ^f00029 shall be made—

(a) in the High Court, by originating summons, which may be issued out of the principal registry or any district registry, or

(b) in a county court, by originating application,

in Form M23 and shall be supported by affidavit.

(2) An order under section 17 may be made in any ancillary relief proceedings upon the application of any party thereto in Form M11 by notice of application or summons.

(3) An application under section 17 to a county court shall be filed—

(a) subject to sub-paragraph (b), in the court for the district in which the applicant or respondent resides, or

(b) in the divorce county court in which any pending matrimonial cause has been commenced by or on behalf of either the applicant or the respondent, or in which any matrimonial cause is intended to be commenced by the applicant.

(4) Where the application concerns the title to or possession of land, the originating summons or application shall—

(a) state whether the title to the land is registered or unregistered and, if registered, the Land Registry title number; and

(b) give particulars, so far as known to the applicant, of any mortgage of the land or any interest therein.

(5) The application shall be served on the respondent, together with a copy of the affidavit in support and an acknowledgement of service in Form M6.

(6) Where particulars of a mortgage are given pursuant to paragraph (4), the applicant shall file a copy of the originating summons or application, which shall be served on the mortgagee; and any person so served may apply to the court in writing, within 14 days after service, for a copy of the affidavit in support; and within 14 days of receiving such affidavit may file an affidavit in answer and shall be entitled to be heard on the application.

(7) If the respondent intends to contest the application, he shall, within 14 days after the time allowed for sending the acknowledgement of service, file an affidavit in answer to the application setting out the grounds on which he relies, and lodge in the court office a copy of the affidavit for service on the applicant.

(8) If the respondent fails to comply with paragraph (7), the applicant may apply for directions; and the district judge may give such directions as he thinks fit, including a direction that the respondent shall be debarred from defending the application unless an affidavit is filed within such time as the district judge may specify.

(9) A district judge may grant an injunction in proceedings under section 17 if, but only so far as, the injunction is ancillary or incidental to any relief sought in those proceedings.

(10) Rules 2.62(4) to (6) and 2.63 to 2.66 shall apply, with the necessary modifications, to an application under section 17 as they apply to an application for ancillary relief.

(11) Subject to the provisions of this rule, these rules shall apply, with the necessary modifications, to an application under section 17 as if the application were a cause, the originating summons or application a petition, and the applicant a petitioner.

Exercise in principal registry of county court jurisdiction under section 17 of Married Women’s Property Act 1882

3.7

(1) Where any proceedings for divorce, nullity or judicial separation which are either pending in the principal registry, or are intended to be commenced there by the applicant, are or will be treated as pending in a divorce county court, an application under section 17 by one of the parties to the marriage may be made to the principal registry as if it were a county court.

(2) In relation to proceedings commenced or intended to be commenced in the principal registry under paragraph (1) of this rule or transferred from the High Court to the principal registry by an order made under section 38 of the Act of 1984[^f00030]—

(a) section 42 of the Act of 1984 and the rules made thereunder shall have effect, with the necessary modifications, as they have effect in relation to proceedings commenced in or transferred to the principal registry under that section; and

(b) CCR Order 4, rule 8 and rule 3.6(3) (which relate to venue) shall not apply.

(3) Rule 1.4(1) shall apply, with the necessary modifications, to proceedings in, or intended to be commenced in, the principal registry under paragraph (1) of this rule as it applies to matrimonial proceedings.

Proceedings under sections 1 and 9 of and Schedule 1 to Matrimonial Homes Act 1983

3.8

(1) In this rule, unless the context otherwise requires, a section or schedule referred to by number means the section or schedule so numbered in the Matrimonial Homes Act 1983.

(2) Subject to paragraph (3), the provisions of rule 3.6 shall apply, with necessary modifications, to proceedings under section 1 or section 9 as they apply to an application under section 17 of the Married Women’s Property Act 1882.

(3) Where matrimonial proceedings are pending, an application under section 1 or section 9 made by a party to those proceedings shall be made as an application in those proceedings.

(4) An application for an order under section I or section 9 may be heard and determined by a district judge.

(5) Where the applicant asks for an order under section 1 or section 9 terminating the respondent’s rights of occupation and it appears to the court, upon ex parte application by the applicant, that the respondent is not in occupation of the dwelling-house to which the application relates and his whereabouts cannot after reasonable enquiries be ascertained, the court may dispense with service of the application on the respondent and hear and determine the application.

(6) This rule shall apply to an application for an order vacating the registration of a land charge of Class F or a notice or caution registered under section 2(7) of the Matrimonial Homes Act 1967[^f00032]or a notice registered under section 2(8) of the Matrimonial Homes Act 1983, whether or not it is joined with an application under the relevant sections, as it applies to an application under those sections.

(7) The jurisdiction of the court under Schedule 1 may be exercised by a district judge.

(8) Where an application is made for an order under Schedule 1, notice of the application (or, in the High Court, the summons by which the application is made) shall be served on—

(a) the spouse entitled as mentioned in paragraph 1 of that Schedule to occupy the dwelling house to which the application relates, and

(b) the landlord of the dwelling house;

and any person served shall be entitled to be heard on the application.

(9) A divorce county court in which an application for an order under Schedule 1 is pending may order the transfer of the application to another divorce county court; and rule 10.10(4) and (5) shall apply to such an order as it applies to orders under paragraph (2) of that rule.

(10) Before making an order for the transfer of an application under paragraph (9) the court shall consider whether it would be more convenient to transfer the cause under rule 10.10(2).

(11) Unless the court otherwise directs, a transfer of the cause in which a decree is sought or granted shall include a transfer of the application.

(12) In this rule “matrimonial proceedings” means—

(a) a matrimonial cause; or

(b) proceedings under section 17 of the Married Women’s Property Act 1882 concerning the matrimonial home.

Domestic Violence and Matrimonial Proceedings Act 1976

3.9

(1) In this rule a section referred to by number means the section so numbered in the Domestic Violence and Matrimonial Proceedings Act 1976.

(2) Subject to paragraph (3), an application under section 1 may be made by originating summons in Form No. 10 in Appendix A to the Rules of the Supreme Court [^f00034]in the High Court or by originating application to the county court for the district in which either the applicant or the respondent resides or the matrimonial home is situated, and shall be dealt with in chambers unless the court otherwise directs.

(3) Where a cause, or proceedings under this Part, are pending, an application under section I made by a party to those proceedings may be made as an application in those proceedings.

(4) Where an application under section I is pending the court shall (on the application of either party or of its own motion) consider whether to exercise its powers under rule 10.10 to transfer the hearing of that application to another court and shall order such transfer if it seems necessary or expedient to do so.

(5) The application shall be served on the respondent not less than two days before the date upon which the application is to be heard, unless the court orders otherwise.

(6) Where an injunction contains one or more provisions of the kind described in section 2(1) (in this paragraph and paragraph (7) referred to as “the relevant provisions”) and a power of arrest is attached to the injunction—

(a) the relevant provisions shall be set out in separate clauses of the injunction and those clauses shall not refer to any form of molestation which would not entitle a constable to arrest the respondent under section 2(3); and

(b) a copy of the relevant provisions shall be delivered to the officer for the time being in charge of any police station for the applicant’s address.

(7) Where an order is made varying or discharging the relevant provisions of an injunction to which a power of arrest has been attached under section 2, the proper officer shall immediately inform the officer for the time being in charge of the police station at which a copy of the injunction was delivered pursuant to paragraph (6) and, if the applicant’s address has since changed, any police station for the new adddress; and a copy of the order shall be delivered to any officer so informed.

(8) The judge before whom a person is brought pursuant to section 2(4) may adjourn the proceedings and, where such an order is made, the arrested person shall be released and—

(a) be dealt with (whether by the same or another judge) within 14 days of the day on which he was arrested; and

(b) be given not less than two days' notice of the adjourned hearing,

but nothing in this paragraph shall prevent the issue of a notice under CCR Order 29, rule 1(4) if the arrested person is not dealt with within the period mentioned in sub-paragraph (a) above.

(9) In relation to a person who is in custody under such an order and warrant of a county court, CCR Order 29, rule 3, shall have effect as if the order and warrant were issued at the instance of the person who made the application under section 2(1).

Domestic Proceedings and Magistrates' Courts Act 1978

3.10

Where a direction is given under section 28 of the Domestic Proceedings and Magistrates' Courts Act 1978[^f00036] that a magistrates' court order to which a power of arrest is attached shall cease to have effect the court giving the direction shall immediately inform the officer for the time being in charge of the police station to which a copy of the magistrates' court order was sent and, if the applicant’s address has since changed, any police station for the new address; and a copy of the direction shall be delivered to any officer so informed.

Proceedings in respect of polygamous marriage

3.11

(1) The provisions of this rule shall have effect where a petition, originating application or originating summons asks for matrimonial relief within the meaning of section 47(2) of the Act of 1973[^f00037] in respect of a marriage entered into under a law which permits polygamy (in this rule referred to as a polygamous marriage).

(2) The petition, originating application or originating summons—

(a) shall state that the marriage in question is polygamous;

(b) shall state whether or not there is, to the knowledge of the petitioner or applicant, any living spouse of his or hers additional to the respondent or, as the case may be, any living spouse of the respondent additional to the petitioner or applicant (in this rule referred to as an additional spouse); and

(c) if there is any additional spouse, shall give his or her full name and address and the date and place of his or her marriage to the petitioner or applicant or, as the case may be, to the respondent, or state, so far as may be applicable, that such information is unknown to the petitioner or applicant.

(3) Without prejudice to its powers under RSC Order 15 (which deals with parties) or CCR Order 15 (which deals with amendment) the court may order that any additional spouse—

(a) be added as a party to the proceedings; or

(b) be given notice of—

(i) the proceedings; or

(ii) of any application in the proceedings for any such order as is mentioned in section 47(2)(d) of the Act of 1973.

(4) Any order under paragraph (3) may be made at any stage of the proceedings and either on the application of any party or by the court of its own motion and, where an additional spouse is mentioned in a petition or an acknowledgement of service of a petition, the petitioner shall, on making any application in the proceedings or, if no previous application has been made in the proceedings, on making a request for directions for trial, ask for directions as to whether an order should be made under paragraph (3).

(5) Any person to whom notice is given pursuant to an order under paragraph (3) shall be entitled, without filing an answer or affidavit, to be heard in the proceedings or on the application to which the notice relates.

Application under section 55 of Act of 1986 for declaration as to marital status

3.12

(1) Unless otherwise directed, a petition by which proceedings are begun under section 55 of the Act of 1986 for a declaration as to marital status shall state—

(a) the names of the parties to the marriage to which the application relates and the residential address of each of them at the date of the presentation of the petition;

(b) the place and date of any ceremony of marriage to which the application relates;

(c) the grounds on which the application is made and all other material facts alleged by the petitioner to justify the making of the declaration;

(d) whether there have been or are continuing any proceedings in any court, tribunal or authority in England and Wales or elsewhere between the parties which relate to, or are capable of affecting, the validity or subsistence of the marriage, divorce, annulment or legal separation to which the application relates, or which relate to the matrimonial status of either of the parties, and, if so—

(i) the nature, and either the outcome or present state of those proceedings,

(ii) the court, tribunal or authority before which they were begun,

(iii) the date when they were begun,

(iv) the names of the parties to them,

(v) the date or expected date of the trial,

(vi) any other facts relevant to the question whether the petition should be stayed under Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973[^f00038];

and any such proceedings shall include any which are instituted otherwise than in a court of law in any country outside England and Wales, if they are instituted before a tribunal or other authority having power under the law having effect there to determine questions of status, and shall be treated as continuing if they have begun and have not been finally disposed of,

(e) where it is alleged that the court has jurisdiction based on domicile, which of the parties to the marriage to which the application relates is domiciled in England and Wales on the date of the presentation of the petition, or died before that date and was al death domiciled in England and Wales.

(f) where it is alleged that the court has Jurisdiction based on habitual residence, which of the parties to the marriage to which the application relates has been habitually resident in England and Wales, or died before that date and had been habitually resident in England and Wales throughout the period of one year ending with the date of death;

(g) where the petitioner was not a party to the marriage to which the application relates, particulars of his interest in the determination of the application.

(2) Where the proceedings are for a declaration that the validity of a divorce, annulment or legal separation obtained in any country outside England or Wales in respect of the marriage either is or is not entitled to recognition in England and Wales, the petition shall in addition state the date and place of the divorce, annulment or legal separation.

(3) There shall be annexed to the petition a copy of the certificate of any marriage to which the application relates, or, as the case may be, a certified copy of any decree of divorce, annulment or order for legal separation to which the application relates.

(4) Where a document produced by virtue of paragraph (3) is not in English it shall, unless otherwise directed, be accompanied by a translation certified by a notary public or authenticated by affidavit.

(5) The parties to the marriage in respect of which a declaration is sought shall be petitioner and respondent respectively to the application, unless a third party is applying for a declaration, in which case he shall be the petitioner and the parties to the marriage shall be respondents to the application.

Application under section 56(1)(a) of Act of 1986 for declaration of parentage

3.13

(1) Unless otherwise directed, a petition by which proceedings are begun under section 56(1)(a) of the Act of 1986 for a declaration of parentage shall state—

(a) the name (including forenames and surname) of the petitioner, and if the petitioner is known by a name other than that which appears in the certificate of his birth, that other name shall be stated in the petition and in any decree made thereon;

(b) the sex of the petitioner;

(d) if it is known, the name (including forenames and surname) of the father of the petitioner, his place and date of birth, residential address and occupation;

(e) if they are known, the place and date of birth, the residential address and occupation of the mother of the petitioner and her names (including forenames and surname) at the following times—

(i) at the date of her birth;

(ii) if it is different, at the date of her first marriage;

(iii) if it is different, at the date of birth of the petitioner;

(iv) if it is different, at the date of her most recent marriage;

(v) if it is different, at the time of the presentation of the petition;

(f) the grounds on which the petitioner relies and all other material facts alleged by him to justify the making of the declaration;

(g) whether there are or have been any other proceedings in any court, tribunal or authority in England and Wales or elsewhere relating to the parentage of the petitioner, and, if so—

(i) particulars of the proceedings, including the court, tribunal or authority before which they were begun, and their nature, outcome or present state,

(ii) the date they were begun,

(iii) the names of the parties, and

(iv) the date or expected date of any trial in the proceedings;

(h) either that the petitioner is domiciled in England and Wales on the date of the presentation of the petition or that he has been habitually resident in England and Wales throughout the period of one year ending with that date; and

(i) the nationality, citizenship or immigration status of the petitioner and any person named in the petition as his parent, and the effect which the granting of a declaration of parentage would have upon the petitioner’s status as regards his nationality, citizenship or right to be in the United Kingdom.

(2) Unless otherwise directed, there shall be annexed to the petition a copy of the petitioner’s birth certificate.

(3) The petitioner’s parents shall both, if alive, be respondents to the application.

(4) The prescribed officer for the purposes of section 56(4) of the Act of 1986 shall be the chief clerk of the family proceedings department of the principal registry.

(5) Within 21 days after a declaration of parentage has been made the prescribed officer shall send to the Registrar General a copy of the declaration in the form prescribed in Form M26 and the petition.

Application under section 56(1)(b) and (2) of Act of 1986 for declaration of legitimacy or legitimation

3.14

(1) Unless otherwise directed, a petition by which proceedings are begun under section 56(1)(b) and (2) of the Act of 1986 for a declaration of legitimacy or legitimation shall state—

(a) the name of the petitioner, and if the petitioner is known by a name other than that which appears in the certificate of his birth, that other name shall be stated in the petition and in any decree made thereon;

(b) the date and place of birth of the petitioner;

(c) if it is known, the name of the petitioner’s father and the maiden name of the petitioner’s mother and, if it is different, her current 'name, and the residential address of each of them at the time of the presentation of the petition;

(d) the grounds on which the petitioner relies and all other material facts alleged by him to justify the making of the declaration; and

(e) either that the petitioner is domiciled in England and Wales on the date of the presentation of the petition or that he has been habitually resident in England and Wales throughout the period of one year ending with that date.

(2) Unless otherwise directed, there shall be annexed to the petition a copy of the petitioner’s birth certificate.

(3) The petitioner’s father and mother, or the survivor of them, shall be respondents to the application.

Application under section 57 of Act of 1986 for declaration as to adoption effected overseas

3.15

(1) Unless otherwise directed, a petition by which proceedings are begun under section 57 of the Act of 1986 for a declaration as to an adoption effected overseas shall state—

(a) the names of those persons who are to be respondents pursuant to paragraph (4) and the residential address of each of them at the date of the presentation of the petition;

(b) the date and place of the petitioner’s birth;

(d) all other material facts alleged by the petitioner to justify the making of the declaration and the grounds on which the application is made;

(e) either that the petitioner is domiciled in England and Wales on the date of the presentation of the petition or that he has been habitually resident in England and Wales throughout the period of one year ending with that date.

(2) There shall be annexed to the petition a copy of the petitioner’s birth certificate (if it is available this certificate should be the one made after the adoption referred to in the petition) and, unless otherwise directed, a certified copy of the adoption order effected under the law of any country outside the British Islands.

(3) Where a document produced by virtue of paragraph (2) is not in English, it shall, unless otherwise directed, be accompanied by a translation certified by a notary public or authenticated by affidavit.

(4) The following shall, if alive, be respondents to the application, either—

(a) those whom the petitioner claims are his adoptive parents for the purposes of section 39 of the Adoption Act 1976[^f00040]; or

(b) those whom the petitioner claims are not his adoptive parents for the purposes of that section.

General provisions as to proceedings under rules 3.12, 3.13, 3.14 and 3.15

3.16

(1) A petition under rule 3.12, 3.13, 3.14 or 3.15 shall be supported by an affidavit by the petitioner verifying the petition and giving particulars of every person whose interest may be affected by the proceedings and his relationship to the petitioner.

Provided that if the petitioner is under the age of 18, the affidavit shall, unless otherwise directed, be made by his next friend.

(2) Where the jurisdiction of the court to entertain a petition is based on habitual residence the petition shall include a statement of the addresses of the places of residence of the person so resident and the length of residence at each place either during the period of one year ending with the date of the presentation of the petition or, if that person is dead, throughout the period of one year ending with the date of death.

(3) An affidavit for the purposes of paragraph (1) may contain statements of information or belief with the sources and grounds thereof.

(4) A copy of the petition and every document accompanying it shall be sent by the petitioner to the Attorney General at least one month before the petition is filed and it shall not be necessary thereafter to serve these documents upon him.

(5) The proper officer shall send a copy of any answer to the Attorney General if he has notified the court that he wishes to intervene in the proceedings.

(6) When all answers to the petition have been filed the petitioner shall issue and serve on all respondents to the application a request for directions as to any other persons who should be made respondents to the petition or given notice of the proceedings.

(7) When giving directions in accordance with paragraph (6) the court shall consider whether it is necessary that the Attorney General should argue before it any question relating to the proceedings, and if it does so consider, the Attorney General need not file an answer and the court shall give directions requiring him to serve on all parties to the proceedings a summary of his argument.

(8) Persons given notice of proceedings pursuant to directions given in accordance with paragraph (6) shall within 21 days after service of the notice upon them be entitled to apply to the court to be joined as parties.

(9) The Attorney General may file an answer to the petition within 21 days after directions have been given under paragraph (7) and no directions for trial shall be given until that period and the period referred to in paragraph (8) have expired.

(10) The Attorney General, in deciding whether it is necessary or expedient to intervene in the proceedings, may have a search made for, and may inspect and bespeak a copy of, any document filed or lodged in the court offices which relates to any other family proceedings referred to in proceedings.

(11) Declarations made in accordance with section 55, section 56(1)(a), section 56(1)(b) and (2) and section 57 of the Act of 1986 shall be in the forms prescribed respectively in Forms M29, M30, M31 and M32.

(12) Subject to rules 3.12, 3.13, 3.14 and 3.15 and this rule, these rules shall, so far as applicable and with the exception of rule 2.6(1), apply with the necessary modifications to the proceedings as if they were a cause.

Application for leave under section 13 of Act of 1984

3.17

(1) An application for leave to apply for an order for financial relief under Part III of the Act of 1984 shall be made ex parte by originating summons issued in Form M25 out of the principal registry and shall be supported by an affidavit by the applicant stating the facts relied on in support of the application with particular reference to the matters set out in section 16(2) of that Act.

(2) The affidavit in support shall give particulars of the judicial or other proceedings by means of which the marriage to which the application relates was dissolved or annulled or by which the parties to the marriage were legally separated and shall state, so far as is known to the applicant:

(a) the names of the parties to the marriage and the date and place of the marriage;

(b) the occupation and residence of each of the parties to the marriage;

(c) whether there are any living children of the family and, if so, the number of such children and the full names (including surname) of each and his date of birth or, if it be the case, that he is over 18;

(d) whether either party to the marriage has remarried;

(e) an estimate in summary form of the appropriate amount or value of the capital resources and net income of each party and of any minor child of the family;

(f) the grounds on which it is alleged that the court has jurisdiction to entertain an application for an order for financial relief under Part 111 of the Act of 1984.

(3) The proper officer shall fix a date, time and place for the hearing of the application by a judge in chambers and give notice thereof to the applicant.

Application for order for financial relief or avoidance of transaction order under Part III of Act of 1984

3.18

(1) An application for an order for financial relief under Part III of the Act of 1984 shall be made by originating summons issued in Form M26 out of the principal registry and at the same time the applicant, unless otherwise directed, shall file an affidavit in support of the summons giving full particulars of his property and income.

(2) The applicant shall serve a sealed copy of the originating summons on the respondent and shall annex thereto a copy of the affidavit in support, if one has been filed, and a notice of proceedings and acknowledgement of service in Form M28, and rule 10.8 shall apply to such an acknowledgement of service as if the references in paragraph (1) of that rule to Form M6 and in paragraph (2) of that rule to seven days were, respectively, references to Form M28 and 31 days.

(3) Rules 2.57, 2.59, 2.61, 2.62(5) and (6), 2.63 and 2.66(1) and (2) shall apply, with the necessary modifications, to an application for an order for financial relief under this rule as they apply to an application for ancillary relief made by notice in Form M11 and the court may order the attendance of any person for the purpose of being examined or cross-examined and the discovery and production of any document.

(4) An application for an interim order for maintenance under section 14 or an avoidance of transaction order under section 23 of the Act of 1984 may be made, unless the court otherwise directs, in the originating summons under paragraph (1) or by summons in accordance with rule 10.9(1) and an application for an order under section 23 shall be supported by an affidavit, which may be the affidavit filed under paragraph (1), stating the facts relied on.

(5) If the respondent intends to contest the application he shall, within 28 days after the time limited for giving notice to defend, file an affidavit in answer to the application setting out the grounds on which he relies and shall serve a copy on the applicant.

(6) In respect of any application for an avoidance of transaction order the court may give such a direction or make such appointment as it is empowered to give or make by paragraph (3), and rule 2.59 shall apply, with the necessary modifications, to an application for an avoidance of transaction order as it applies to an application for an avoidance of disposition order.

(7) Where the originating summons contains an application for an order under section 22 of the Act of 1984[^f00041] the applicant shall serve a copy on the land]ord of the dwelling house and he shall be entitled to be heard on the application.

(8) An application for an order for financial relief under Part III of the Act of 1984 or for an avoidance of transaction order shall be determined by a judge.

Application for order under section 24 of Act of 1984 preventing transaction

3.19

(1) An application under section 24 of the Act of 1984 for an order preventing a transaction shall be made by originating summons issued in Form M27 out of the principal registry and shall be supported by an affidavit by the applicant stating the facts relied on in support of the application.

(2) The applicant shall serve a sealed copy of the originating summons on the respondent and shall annex thereto a copy of the affidavit in support and a notice of proceedings and acknowledgement of service in Form M28 and rule 10.8 shall apply to such an acknowledgement of service as if the references in paragraph (1) of that rule to Form M6 and in paragraph (2) of that rule to seven days were, respectively, references to Form M28 and 31 days.

(3) If the respondent intends to contest the application he shall, within 28 days after the time limited for giving notice of intention to defend, file an affidavit in answer to the application setting out the grounds on which he relies and shall serve a copy on the applicant.

(4) The application shall be determined by a judge.

(5) Rule 2.66 (except paragraph (3)) shall apply, with the necessary modifications, to the application as if it were an application for ancillary relief.

3.20

(1) An application under section 3 of the Marriage Act 1949 ^f00042 for the consent of the court to the marriage of a minor shall be dealt with in chambers unless the court otherwise directs.

(2) The application may be heard and determined by a district judge.

(3) An application under section 3 may be brought without the intervention of the applicant’s next friend, unless the court otherwise directs.

(4) Where an application under section 3 follows a refusal to give consent to marriage every person who has refused consent shall be made a defendant to the summons or a respondent to the application, as appropriate.

(5) The application shall, unless the court orders otherwise, be served not less than seven days before the date upon which the application is to be heard.

PART IV — PROCEEDINGS UNDER THE CHILDREN ACT 1989

Interpretation and application

4.1

(1) In this Part of these rules, unless a contrary intention appears–

a section or schedule referred to means the section or schedule so numbered in the Act of 1989;

“a section 8 order” has the meaning assigned to it by section 8(2);

“application” means an application made under or by virtue of the Act of 1989 or under these rules, and “applicant” shall be construed accordingly;

“child”, in relation to proceedings to which this Part applies– means, subject to sub-paragraph (b), a person under the age of 18 with respect to whom the proceedings are brought, and where the proceedings are under Schedule 1, also includes a person who has reached the age of 18;

“directions appointment” means a hearing for directions under rule 4.14(2);

“emergency protection order” means an order under section 44;

“guardian ad litem” means a guardian ad litem, appointed under section 41, of the child with respect to whom the proceedings are brought;

“leave” includes permission and approval;

“note” includes a record made by mechanical means;

“parental responsibility” has the meaning assigned to it by section 3;

“recovery order” means an order under section 50;

“specified proceedings” has the meaning assigned to it by section 41(6) and rule 4.2(2); and

“welfare officer” means a person who has been asked to prepare a welfare report under section 7.

(2) Except where the contrary intention appears, the provisions of this Part apply to proceedings in the High Court and the county courts–

(a) on an application for a section 8 order;

(b) on an application for a care order or a supervision order;

(c) on an application under section 4(1)(a), 4(3), 5(1), 6(7), 13(1), 16(6), 33(7), 34(2), 34(3), 34(4), 34(9), 36(1), 38(8)(b), 39(1), 39(2), 39(3), 39(4), 43(1), 43(12), 44, 45, 46(7), 48(9), or 50(1);

(d) under Schedule 1, except where financial relief is also sought by or on behalf of an adult,

(e) on an application under paragraph 19(1) of Schedule 2;

(f) on an application under paragraph 6(3), 15(2) or 17(1) of Schedule 3;

(g) on an application under paragraph 11(3) or 16(5) of Schedule 14; or

(h) under section 25.

Matters prescribed for the purposes of the Act of 1989

4.2

(1) The parties to proceedings in which directions are given under section 38(6), and any person named in such a direction, form the prescribed class for the purposes of section 38(8) (application to vary directions made with interim care or interim supervision order).

(2) The following proceedings are specified for the purposes of section 41 in accordance with subsection (6)(i) thereof–

(a) proceedings under section 25;

(b) applications under section 33(7);

(d) applications under paragraph 6(3) of Schedule 3.

(3) The applicant for an order that has been made under section 43(1) and the persons referred to in section 43(11) may, in any circumstances, apply under section 43(12) for a child assessment order to be varied or discharged.

(4) The following persons form the prescribed class for the purposes of section 44(9) (application to vary directions)–

(a) the parties to the application for the order in respect of which it is sought to vary the directions;

(b) the guardian ad litem;

(d) any person who is named in the directions.

Application for leave to commence proceedings

4.3

(1) Where the leave of the court is required to bring any proceedings to which this Part applies, the person seeking leave shall file–

(a) a written request for leave setting out the reasons for the application; and

(b) a draft of the application for the making of which leave is sought in the appropriate form in Appendix 1 to these rules or, where there is no such form, in writing, together with sufficient copies for one to be served on each respondent.

(2) On considering a request for leave filed under paragraph (1), the court shall–

(a) grant the request, whereupon the proper officer shall inform the person making the request of the decision, or

(b) direct that a date be fixed for the hearing of the request, whereupon the proper officer shall fix such a date and give such notice as the court directs to the person making the request and to such other persons as the court requires to be notified, of the date so fixed.

(3) Where leave is granted to bring proceedings to which this Part applies the application shall proceed in accordance with rule 4.4; but paragraph (1)(a) of that rule shall not apply.

(4) In the case of a request for leave to bring proceedings under Schedule 1, the draft application under paragraph (1) shall be accompanied by a statement setting out the financial details which the person seeking leave believes to be relevant to the request and containing a declaration that it is true to the maker’s best knowledge and belief, together with sufficient copies for one to be served on each respondent.

Application

4.4

(1) Subject to paragraph (4), an applicant shall–

(a) file the application in respect of each child in the appropriate form in Appendix 1 to these rules or, where there is no such form, in writing, together with sufficient copies for one to be served on each respondent, and

(b) serve a copy of the application, endorsed in accordance with paragraph (2)(b), on each respondent such number of days prior to the date fixed under paragraph (2)(a) as is specified for that application in column (ii) of Appendix 3 to these rules.

(2) On receipt of the documents filed under paragraph (1)(a) the proper officer shall–

(a) fix the date for a hearing or a directions appointment, allowing sufficient time for the applicant to comply with paragraph (1)(b),

(b) endorse the date so fixed upon the copies of the application filed by the applicant, and

(3) The applicant shall, at the same time as complying with paragraph (1)(b), give written notice of the proceedings, and of the date and place of the hearing or appointment fixed under paragraph (2)(a), to the persons set out for the relevant class of proceedings in column (iii) of Appendix 3 to these rules.

(4) An application for–

(a) a prohibited steps order, or a specific issue order, under section 8,

(b) an emergency protection order,

(d) a recovery order,

may be made ex parte in which case the applicant shall–

(i) file the application in respect of each child in the appropriate form in Appendix 1 to these rules–

(a) where the application is made by telephone, within 24 hours after the making of the application, or

(b) in any other case, at the time when the application is made, and

(ii) in the case of an application for a prohibited steps order, or a specific issue order, under section 8 or an emergency protection order, serve a copy of the application on each respondent within 48 hours after the making of the order.

(5) Where the court refuses to make an order on an ex parte application it may direct that the application be made inter partes.

(6) In the case of proceedings under Schedule 1, the application under paragraph (1) shall be accompanied by a statement setting out the financial details which the applicant believes to be relevant to the application and containing a declaration that it is true to the maker’s best knowledge and belief, together with sufficient copies for one to be served on each respondent.

Withdrawal of application

4.5

(1) An application may be withdrawn only with leave of the court.

(2) Subject to paragraph (3), a person seeking leave to withdraw an application shall file and serve on the parties a written request for leave setting out the reasons for the request.

(3) The request under paragraph (2) may be made orally to the court if the parties and either the guardian ad litem or the welfare officer are present.

(4) Upon receipt of a written request under paragraph (2) the court shall–

(a) if–

(i) the parties consent in writing,

(ii) the guardian ad litem has had an opportunity to make representations, and

(iii) the court thinks fit,

grant the request, in which case the proper officer shall notify the parties, the guardian ad litem and the welfare officer of the granting of the request, or

(b) direct that a date be fixed for the hearing of the request in which case the proper officer shall give at least 7 days' notice to the parties, the guardian ad litem and the welfare officer, of the date fixed.

Transfer from magistrates' court to county court and from county court to High Court

4.6

(1) Where an application is made, in accordance with the provisions of any Order made under Part I of Schedule 11 to the Act of 1989, to a county court for an order transferring proceedings from a magistrates' court following the refusal of the magistrates' court to order such a transfer, the applicant shall–

(a) file the application in Form CHA58, together with a copy of the certificate issued by the magistrates' court, and

(b) serve a copy of the documents mentioned in sub-paragraph (a) personally on all parties to the proceedings which it is sought to have transferred,

within 2 days after receipt by the applicant of the certificate.

(2) Within 2 days after receipt of the documents served under paragraph (1)(b), any party other than the applicant may file written representations.

(3) The court shall, not before the fourth day after the filing of the application under paragraph (1), unless the parties consent to earlier consideration, consider the application and either–

(a) grant the application, whereupon the proper officer shall inform the parties of that decision, or

(b) direct that a date be fixed for the hearing of the application, whereupon the proper officer shall fix such a date and give not less than 1 day’s notice to the parties of the date so fixed.

(4) Where proceedings are transferred from a magistrates' court to a county court in accordance with the provisions of any Order under Part I of Schedule 11 to the Act of 1989, the county court shall consider whether to transfer those proceedings to the High Court in accordance with that Order and either–

(a) determine that such an order need not be made,

(b) make such an order,

(c) order that a date be fixed for the hearing of the question whether such an order should be made, whereupon the proper officer shall give such notice to the parties as the court directs of the date so fixed, or

(d) invite the parties to make written representations, within a specified period, as to whether such an order should be made; and upon receipt of the representations the court shall act in accordance with sub-paragraph (a), (b) or (c).

(5) The proper officer shall notify the parties of an order transferring the proceedings from a county court or from the High Court made in accordance with the provisions of any Order under Part I of Schedule 11 to the Act of 1989.

Parties

4.7

(1) The respondents to proceedings to which this Part applies shall be those persons set out in the relevant entry in column (iv) of Appendix 3 to these rules.

(2) In proceedings to which this Part applies, a person may file a request in writing that he or another person–

(a) be joined as a party, or

(b) cease to be a party.

(3) On considering a request under paragraph (2) the court shall, subject to paragraph (4)–

(a) grant it without a hearing or representations, save that this shall be done only in the case of a request under paragraph (2)(a), whereupon the proper officer shall inform the parties and the person making the request of that decision, or

(b) order that a date be fixed for the consideration of the request, whereupon the proper officer shall give notice of the date so fixed, together with a copy of the request–

(i) in the case of a request under paragraph (2)(a), to the applicant, and

(ii) in the case of a request under paragraph (2)(b), to the parties, or

(c) invite the parties or any of them to make written representations, within a specified period, as to whether the request should be granted; and upon the expiry of the period the court shall act in accordance with sub-paragraph (a) or (b).

(4) Where a person with parental responsibility requests that he be joined under paragraph (2)(a), the court shall grant his request.

(5) In proceedings to which this Part applies the court may direct–

(a) that a person who would not otherwise be a respondent under these rules be joined as a party to the proceedings, or

(b) that a party to the proceedings cease to be a party.

Service

4.8

(1) Subject to the requirement in rule 4.6(1)(b) of personal service, where service of a document is required under this Part (and not by a provision to which section 105(8) (Service of notice or other document under the Act) applies) it may be effected–

(a) if the person to be served is not known by the person serving to be acting by solicitor–

(i) by delivering it to him personally, or

(ii) by delivering it at, or by sending it by first-class post to, his residence or his last known residence, or

(b) if the person to be served is known by the person serving to be acting by solicitor–

(i) by delivering the document at, or sending it by first-class post to, the solicitor’s address for service,

(ii) where the solicitor’s address for service includes a numbered box at a document exchange, by leaving the document at that document exchange or at a document exchange which transmits documents on every business day to that document exchange, or

(iii) by sending a legible copy of the document by facsimile transmission to the solicitor’s office.

(2) In this rule “first-class post” means first-class post which has been pre-paid or in respect of which pre-payment is not required.

(3) Where a child who is a party to proceedings to which this Part applies is required by these rules or other rules of court to serve a document, service shall be effected by–

(a) the solicitor acting for the child, or

(b) where there is no such solicitor, the guardian ad litem, or

(4) Service of any document on a child shall, subject to any direction of the court, be effected by service on–

(a) the solicitor acting for the child, or

(b) where there is no such solicitor, the guardian ad litem, or

(5) Where the court refuses leave under paragraph (4)(c) it shall give a direction under paragraph (8).

(6) A document shall, unless the contrary is proved, be deemed to have been served–

(a) in the case of service by first-class post, on the second business day after posting, and

(b) in the case of service in accordance with paragraph (1)(b)(ii), on the second business day after the day on which it is left at the document exchange.

(7) At or before the first directions appointment in, or hearing of, proceedings to which this Part applies the applicant shall file a statement that service of–

(a) a copy of the application has been effected on each respondent, and

(b) notice of the proceedings has been effected under rule 4.4(3);

and the statement shall indicate–

(i) the manner, date, time and place of service, or

(ii) where service was effected by post, the date, time and place of posting.

(8) In proceedings to which this Part applies, the court may direct that a requirement of these rules or other rules of court to serve a document shall not apply or shall be effected in such manner as the court directs.

Answer to application

4.9

(1) Within 14 days of service of an application for a section 8 order, each respondent shall file, and serve on the parties, an answer to the application in Form CHA1OA.

(2) Within 14 days after service of an application under Schedule 1, each respondent shall file, and serve on the parties, an answer to the application in Form CHA13A.

(3) Following service of an application to which this Part applies, other than an application under rule 4.3 or for a section 8 order, a respondent may, subject to paragraph (4), file a written answer, which shall be served on the other parties.

(4) An answer under paragraph (3) shall, except in the case of an application under section 25, 31, 34, 38, 43, 44, 45, 46, 48 or 50, be filed, and served, not less than 2 days before the date fixed for the hearing of the application.

Appointment of guardian ad litem

4.10

(1) As soon as practicable after the commencement of specified proceedings, or the transfer of such proceedings to the court, the court shall appoint a guardian ad litem, unless–

(a) such an appointment has already been made by the court which made the transfer and is subsisting, or

(b) the court considers that such an appointment is not necessary to safeguard the interests of the child.

(2) At any stage in specified proceedings a party may apply, without notice to the other parties unless the court directs otherwise, for the appointment of a guardian ad litem.

(3) The court shall grant an application under paragraph (2) unless it considers such an appointment not to be necessary to safeguard the interests of the child, in which case it shall give its reasons; and a note of such reasons shall be taken by the proper officer.

(4) At any stage in specified proceedings the court may, of its own motion, appoint a guardian ad litem.

(5) The proper officer shall, as soon as practicable, notify the parties and any welfare officer of an appointment under this rule or, as the case may be, of a decision not to make such an appointment.

(6) Upon the appointment of a guardian ad litem the proper officer shall, as soon as practicable, notify him of the appointment and serve on him copies of the application and of documents filed under rule 4.17(1).

(7) A guardian ad litem appointed from a panel established by regulations made under section 41(7) shall not–

(a) be a member, officer or servant of a local authority which, or an authorised person (within the meaning of section 31(9)) who, is a party to the proceedings, unless he is employed by such an authority solely as a member of a panel of guardians ad litem and reporting officers;

(b) be, or have been, a member, officer or servant of a local authority or voluntary organisation (within the meaning of section 105(1)) who has been directly concerned in that capacity in arrangements relating to the care, accommodation or welfare of the child during the five years prior to the commencement of the proceedings;

(c) be a serving probation officer (except that a probation officer who has not in that capacity been previously concerned with the child or his family and who is employed part-time may, when not engaged in his duties as a probation officer, act as a guardian ad litem).

(8) When appointing a guardian ad litem the court shall consider the appointment of anyone who has previously acted as guardian ad litem of the same child.

(9) The appointment of a guardian ad litem under this rule shall continue for such time as is specified in the appointment or until terminated by the court.

(10) When terminating an appointment in accordance with paragraph (9), the court shall give its reasons in writing for so doing.

(11) Where the court appoints a guardian ad litem in accordance with this rule or refuses to make such an appointment, the court or the proper officer shall record the appointment or refusal in Form CHA30.

Powers and duties of guardian ad litem

4.11

(1) In carrying out his duty under section 41(2), the guardian ad litem shall have regard to the principle set out in section 1(2) and the matters set out in section 1(3)(a) to (f) as if for the word “court” in that section there were substituted the words “guardian ad litem”.

(2) The guardian ad litem shall–

(a) appoint a solicitor to represent the child unless such a solicitor has already been appointed, and

(b) give such advice to the child as is appropriate having regard to his understanding and, subject to rule 4.12(1)(a), instruct the solicitor representing the child on all matters relevant to the interests of the child, including possibilities for appeal, arising in the course of the proceedings.

(3) Where it appears to the guardian ad litem that the child–

(a) is instructing his solicitor direct, or

(b) intends to, and is capable of, conducting the proceedings on his own behalf,

he shall so inform the court and thereafter–

(i) shall perform all of his duties set out in this rule, other than duties under paragraph (2)(a) and such other duties as the court may direct,

(ii) shall take such part in the proceedings as the court may direct, and

(iii) may, with leave of the court, have legal representation in his conduct of those duties.

(4) The guardian ad litem shall, unless excused by the court, attend all directions appointments in and hearings of the proceedings and shall advise the court on the following matters–

(a) whether the child is of sufficient understanding for any purpose including the child’s refusal to submit to a medical or psychiatric examination or other assessment that the court has power to require, direct or order;

(b) the wishes of the child in respect of any matter relevant to the proceedings, including his attendance at court;

(d) the appropriate timing of the proceedings or any part of them;

(e) the options available to it in respect of the child and the suitability of each such option including what order should be made in determining the application;

(f) any other matter concerning which the court seeks his advice or concerning which he considers that the court should be informed.

(5) The advice given under paragraph (4) may, subject to any order of the court, be given orally or in writing; and if the advice be given orally, a note of it shall be taken by the court or the proper officer.

(6) The guardian ad litem shall, where practicable, notify any person whose joinder as a party to those proceedings would be likely, in the guardian ad litem’s opinion, to safeguard the interests of the child, of that person’s right to apply to be joined under rule 4.7(2) and shall inform the court–

(a) of any such notification given,

(b) of anyone whom he attempted to notify under this paragraph but was unable to contact, and

(7) The guardian ad litem shall, unless the court otherwise directs, not less than 7 days before the date fixed for the final hearing of the proceedings, file a written report advising on the interests of the child; and the proper officer shall, as soon as practicable, serve a copy of the report on the parties.

(8) The guardian ad litem shall serve and accept service of documents on behalf of the child in accordance with rule 4.8(3)(b) and (4)(b) and, where the child has not himself been served, and has sufficient understanding, advise the child of the contents of any document so served.

(9) The guardian ad litem shall make such investigations as may be necessary for him to carry out his duties and shall, in particular–

(a) contact or seek to interview such persons as he thinks appropriate or as the court directs,

(b) if he inspects records of the kinds referred to in section 42, bring to the attention of the court and such other persons as the court may direct all such records and documents which may, in his opinion, assist in the proper determination of the proceedings, and

(c) obtain such professional assistance as is available to him which he thinks appropriate or which the court directs him to obtain.

(10) In addition to his duties under other paragraphs of this rule, the guardian ad litem shall provide to the court such other assistance as it may require.

(11) A party may question the guardian ad litem about oral or written advice tendered by him to the court under this rule.

Solicitor for child

4.12

(1) A solicitor appointed under section 41(3) or in accordance with rule 4.11(2)(a) shall represent the child–

(a) in accordance with instructions received from the guardian ad litem (unless the solicitor considers, having taken into account the views of the guardian ad litem and any direction of the court under rule 4.11(3), that the child wishes to give instructions which conflict with those of the guardian ad litem and that he is able, having regard to his understanding, to give such instructions on his own behalf in which case he shall conduct the proceedings in accordance with instructions received from the child), or

(b) where no guardian ad litem has been appointed for the child and the condition in section 41(4)(b) is satisfied, in accordance with instructions received from the child, or

(2) A solicitor appointed under section 41(3) or in accordance with rule 4.11(2)(a) shall serve and accept service of documents on behalf of the child in accordance with rule 4.8(3)(a) and (4)(a) and, where the child has not himself been served and has sufficient understanding, advise the child of the contents of any document so served.

(3) Where the child wishes an appointment of a solicitor under section 41(3) or in accordance with rule 4.11(2)(a) to be terminated, he may apply to the court for an order terminating the appointment; and the solicitor and the guardian ad litem shall be given an opportunity to make representations.

(4) Where the guardian ad litem wishes an appointment of a solicitor under section 41(3) to be terminated, he may apply to the court for an order terminating the appointment; and the solicitor and, if he is of sufficient understanding, the child, shall be given an opportunity to make representations.

(5) When terminating an appointment in accordance with paragraph (3) or (4), the court shall give its reasons for so doing, a note of which shall be taken by the court or the proper officer.

(6) Where the court appoints a solicitor under section 41(3) or refuses to make such an appointment, the court or the proper officer shall record the appointment or refusal in Form CHA31.

Welfare officer

4.13

(1) The welfare officer shall, unless excused by the court, attend a hearing if the proper officer gives him notice that his report will be given or considered at that hearing; and any party may question the welfare officer about his report at such a hearing.

(2) A welfare officer shall file a copy of any written report at or by such time as the court directs or, in the absence of a direction, at least 5 days before a hearing of which he is given notice under paragraph (1); and the proper officer shall, as soon as practicable, serve a copy of the report on the parties and the guardian ad litem.

Directions

4.14

(1) In this rule, “party” includes the guardian ad litem and, where a request or a direction concerns a report under section 7, the welfare officer.

(2) In proceedings to which this Part applies the court may, subject to paragraph (3), give, vary or revoke directions for the conduct of the proceedings, including–

(a) the timetable for the proceedings;

(b) varying the time within which or by which an act is required, by these rules or by other rules or court, to be done;

(d) the appointment of a guardian ad litem, whether under section 41 or otherwise, or of a solicitor under section 41(3);

(e) the service of documents;

(f) the submission of evidence including experts' reports;

(g) the preparation of welfare reports under section 7;

(h) the transfer of the proceedings to another court;

(i) consolidation with other proceedings.

(3) Directions under paragraph (2) may be given, varied or revoked either–

(a) of the court’s own motion having given the parties notice of its intention to do so, and an opportunity to attend and be heard or to make written representations,

(b) on the written request of a party specifying the direction which is sought, filed and served on the other parties, or

(c) on the written request of a party specifying the direction which is sought, to which the other parties consent and which they or their representatives have signed.

(4) In an urgent case the request under paragraph (3)(b) may, with the leave of the court, be made–

(a) orally, or

(b) without notice to the parties, or

(5) On receipt of a written request under paragraph (3)(b) the proper officer shall fix a date for the hearing of the request and give not less than 2 days' notice to the parties of the date so fixed.

(6) On considering a request under paragraph (3)(c) the court shall either–

(a) grant the request, whereupon the proper officer shall inform the parties of the decision, or

(b) direct that a date be fixed for the hearing of the request, whereupon the proper officer shall fix such a date and give not less than 2 days' notice to the parties of the date so fixed.

(7) A party may apply for an order to be made under section 11(3) or, if he is entitled to apply for such an order, under section 38(1) in accordance with paragraph (3)(b) or (c).

(8) Where a court is considering making, of its own motion, a section 8 order, or an order under section 31, 34 or 38, the power to give directions under paragraph (2) shall apply.

(9) Directions of a court which are still in force immediately prior to the transfer of proceedings to which this Part applies to another court shall continue to apply following the transfer, subject to any changes of terminology which are required to apply those directions to the court to which the proceedings are transferred, unless varied or discharged by directions under paragraph (2).

(10) The court or the proper officer shall take a note of the giving, variation or revocation of a direction under this rule and serve, as soon as practicable, a copy of the note on any party who was not present at the giving, variation or revocation.

Timing of proceedings

4.15

(1) Where these rules or other rules of court provide a period of time within which or by which a certain act is to be performed in the course of proceedings to which this Part applies, that period may not be extended otherwise than by direction of the court under rule 4.14.

(2) At the–

(a) transfer to a court of proceedings to which this Part applies,

(b) postponement or adjournment of any hearing or directions appointment in the course of proceedings to which this Part applies, or

(c) conclusion of any such hearing or directions appointment other than one at which the proceedings are determined, or so soon thereafter as is practicable,

the court or the proper officer shall–

(i) fix a date upon which the proceedings shall come before the court again for such purposes as the court directs, which date shall, where paragraph (a) applies, be as soon as possible after the transfer, and

(ii) give notice to the parties, the guardian ad litem or the welfare officer of the date so fixed.

Attendance at directions appointment and hearing

4.16

(1) Subject to paragraph (2), a party shall attend a directions appointment of which he has been given notice in accordance with rule 4.14(5) unless the court otherwise directs.

(2) Proceedings or any part of them shall take place in the absence of any party, including the child, if–

(a) the court considers it in the interests of the child, having regard to the matters to be discussed or the evidence likely to be given, and

(b) the party is represented by a guardian ad litem or solicitor;

and when considering the interests of the child under sub-paragraph (a) the court shall give the guardian ad litem, the solicitor for the child and, if he is of sufficient understanding, the child an opportunity to make representations.

(3) Subject to paragraph (4), where at the time and place appointed for a hearing or directions appointment the applicant appears but one or more of the respondents do not, the court may proceed with the hearing or appointment.

(4) The court shall not begin to hear an application in the absence of a respondent unless–

(a) it is proved to the satisfaction of the court that he received reasonable notice of the date of the hearing; or

(b) the court is satisfied that the circumstances of the case justify proceeding with the hearing.

(5) Where, at the time and place appointed for a hearing or directions appointment one or more of the respondents appear but the applicant does not, the court may refuse the application or, if sufficient evidence has previously been received, proceed in the absence of the applicant.

(6) Where at the time and place appointed for a hearing or directions appointment neither the applicant nor any respondent appears, the court may refuse the application.

(7) Unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part applies shall be in chambers.

Documentary evidence

4.17

(1) Subject to paragraphs (4) and (5), in proceedings to which this Part applies a party shall file and serve on the parties, any welfare officer and any guardian ad litem of whose appointment he has been given notice under rule 4.10(5)–

(a) written statements of the substance of the oral evidence which the party intends to adduce at a hearing of, or a directions appointment in, those proceedings, which shall–

(i) be dated,

(ii) be signed by the person making the statement, and

(iii) contain a declaration that the maker of the statement believes it to be true and understands that it may be placed before the court; and

(b) copies of any documents, including experts' reports, upon which the party intends to rely at a hearing of, or a directions appointment in, those proceedings,

at or by such time as the court directs or, in the absence of a direction, before the hearing or appointment.

(2) A party may, subject to any direction of the court about the timing of statements under this rule, file and serve on the parties a statement which is supplementary to a statement served under paragraph (1).

(3) At a hearing or a directions appointment a party may not, without the leave of the court–

(a) adduce evidence, or

(b) seek to rely on a document,

in respect of which he has failed to comply with the requirements of paragraph (1).

(4) In proceedings for a section 8 order a party shall–

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