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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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(a) neither file nor serve any document other than as required or authorised by these rules, and

(b) in completing a form prescribed by these rules, neither give information, nor make a statement, which is not required or authorised by that form,

without the leave of the court.

(5) In proceedings for a section 8 order no statement or copy may be filed under paragraph (1) until such time as the court directs.

Expert evidence—examination of child

4.18

(1) No person may, without the leave of the court, cause the child to be medically or psychiatrically examined, or otherwise assessed, for the purpose of the preparation of expert evidence for use in the proceedings.

(2) An application for leave under paragraph (1) shall, unless the court otherwise directs, be served on all parties to the proceedings and on the guardian ad litem.

(3) Where the leave of the court has not been given under paragraph (1), no evidence arising out of an examination or assessment to which that paragraph applies may be adduced without the leave of the court.

Amendment

4.19

(1) Subject to rule 4.17(2), a document which has been filed or served in proceedings to which this Part applies, may not be amended without the leave of the court which shall, unless the court otherwise directs, be requested in writing.

(2) On considering a request for leave to amend a document the court shall either–

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

(b) invite the parties or any of them to make representations, within a specified period, as to whether such an order should be made.

(3) A person amending a document shall file it and serve it on those persons on whom it was served prior to amendment; and the amendments shall be identified.

Oral evidence

4.20

The court or the proper officer shall keep a note of the substance of the oral evidence given at a hearing of, or directions appointment in, proceedings to which this Part applies.

Hearing

4.21

(1) The court may give directions as to the order of speeches and evidence at a hearing, or directions appointment, in the course of proceedings to which this Part applies.

(2) Subject to directions under paragraph (1), at a hearing of, or directions appointment in, proceedings to which this Part applies, the parties and the guardian ad litem shall adduce their evidence in the following order–

(a) the applicant,

(b) any party with parental responsibility for the child,

(d) the guardian ad litem,

(e) the child, if he is a party to the proceedings and there is no guardian ad litem.

(3) After the final hearing of proceedings to which this Part applies, the court shall deliver its judgment as soon as is practicable.

(4) When making an order or when refusing an application, the court shall state any findings of fact and the reasons for the court’s decision.

(5) An order made in proceedings to which this Part applies shall be recorded, by the court or the proper officer, either in the appropriate form in Appendix 1 to these rules or, where there is no such form, in writing.

(6) Subject to paragraph (7), a copy of an order made in accordance with paragraph (5) shall, as soon as practicable after it has been made, be served by the proper officer on the parties to the proceedings in which it was made on any person with whom the child is living.

(7) Within 48 hours after the making ex parte of–

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

(b) an order under section 44, 48(4), 48(9) or 50,

the applicant shall serve a copy of the order in the appropriate form in Appendix 1 to these Rules on–

(i) each party,

(ii) any person who has actual care of the child or who had such care immediately prior to the making of the order, and

(iii) in the case of an order referred to in sub-paragraph (b), the local authority in whose area the child lives or is found.

(8) At a hearing of, or directions appointment in, an application which takes place outside the hours during which the court office is normally open, the court or the proper officer shall take a note of the substance of the proceedings.

Appeals

4.22

(1) Where an appeal lies–

(a) to the High Court under section 94, or

(b) from any decision of a district judge to the judge of the court in which the decision was made,

it shall be made in accordance with the following provisions; and references to “the court below” are references to the court from which, or person from whom, the appeal lies.

(2) The appellant shall file and serve on the parties to the proceedings in the court below, and on any guardian ad litem,

(a) notice of the appeal in writing, setting out the grounds upon which he relies;

(b) a certified copy of the summons or application and of the order appealed against, and of any order staying its execution;

(d) a copy of any reasons given for the decision.

(3) The notice of appeal shall be filed and served in accordance with paragraph (2)(a)–

(a) within 14 days after the determination against which the appeal is brought, or

(b) in the case of an appeal against an order under section 38(1), within 7 days after the making of the order, or

(c) with the leave of the court to which, or judge to whom, the appeal is to be brought, within such other time as that court or judge may direct.

(4) The documents mentioned in paragraph (2)(b) to (d) shall, subject to any direction of the court to which, or judge to whom, the appeal is to be brought, be filed and served as soon as practicable after the filing and service of the notice of appeal under paragraph (2)(a).

(5) Subject to paragraph (6), a respondent who wishes–

(a) to contend on the appeal that the decision of the court below should be varied, either in any event or in the event of the appeal being allowed in whole or in part, or

(b) to contend that the decision of the court below should be affirmed on grounds other than those relied upon by that court, or

shall, within 14 days of receipt of notice of the appeal, file and serve on all other parties to the appeal a notice in writing, setting out the grounds upon which he relies.

(6) No notice under paragraph (5) may be filed or served in an appeal against an order under section 38.

(7) In the case of an appeal mentioned in paragraph (1)(a), an application to–

(a) withdraw the appeal,

(b) have the appeal dismissed with the consent of all the parties, or

may be heard by a district judge.

(8) An appeal of the kind mentioned in paragraph (1)(a) shall, unless the President otherwise directs, be heard and determined by a single judge.

Confidentiality of documents

4.23

(1) Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies shall be disclosed, other than to–

(a) a party,

(b) the legal representative of a party,

(d) the Legal Aid Board, or

(e) a welfare officer,

without leave of the judge or district Judge.

(2) Nothing in this rule shall prevent the notification by the court or the proper officer of a direction under section 37(1) to the authority concerned.

4.24

Consent for the purposes of–

(a) section 16(3),

(b) section 33(7), or

shall be given either–

(i) orally in court, or

(ii) in writing to the court signed by the person giving his consent.

Secure accommodation—evidence

4.25

In proceedings under section 25, the court shall, if practicable, arrange for copies of all written reports before it to be made available before the hearing to–

(a) the applicant;

(b) the parent or guardian of the child;

(d) the guardian ad litem; and

(e) the child, unless the court otherwise directs;

and copies of such reports may, if the court considers it desirable, be shown to any person who is entitled to notice of the proceedings in accordance with these rules.

Investigation under section 37

4.26

(1) This rule applies where a direction is given to an appropriate authority by the High Court or a county court under section 37(1).

(2) On giving a direction the court shall adjourn the proceedings and the court or the proper officer shall record the direction in writing.

(3) A copy of the direction recorded under paragraph (2) shall, as soon as practicable after the direction is given, be served by the proper officer on the parties to the proceedings in which the direction is given and, where the appropriate authority is not a party, on that authority.

(4) When serving the copy of the direction on the appropriate authority the proper officer shall also serve copies of such of the documentary evidence which has been, or is to be, adduced in the proceedings as the court may direct.

(5) Where a local authority informs the court of any of the matters set out in section 37(3)(a) to (c) it shall do so in writing.

Direction to local education authority to apply for education supervision order

4.27

(1) For the purposes of section 40(3) and (4) of the Education Act 1944[^f00043]a direction by the High Court or a county court to a local education authority to apply for an education supervision order shall be given in writing.

(2) Where, following such a direction, a local education authority informs the court that they have decided not to apply for an education supervision order, they shall do so in writing.

Transitional provision

4.28

Nothing in any provision of this Part of these rules shall affect any proceedings which are pending (within the meaning of paragraph 1 of Schedule 14 to the Act of 1989) immediately before these rules come into force.

PART V — WARDSHIP

Application to make a minor a ward of court

5.1

(1) An application to make a minor a ward of court shall be made by originating summons and, unless the court otherwise directs, the plaintiff shall file an affidavit in support of the application when the originating summons is issued.

(2) Rule 4.3 shall, so far as applicable, apply to an application by a local authority for the leave of the court under section 100(3) of the Act of 1989.

(3) Where there is no person other than the minor who is a suitable defendant, an application may be made ex parte to a district judge for leave to issue either an ex parte originating summons or an originating summons with the minor as defendant thereto; and, except where such leave is granted, the minor shall not be made a defendant to an originating summons under this rule in the first instance.

(4) Particulars of any summons issued under this rule in a district registry shall be sent by the proper officer to the principal registry for recording in the register of wards.

(5) The date of the minor’s birth shall, unless otherwise directed, be stated in the summons, and the plaintiff shall–

(a) on issuing the summons or before or at the first hearing thereof lodge in the registry out of which the summons issued a certified copy of the entry in the Register of Births or, as the case may be, in the Adopted Children Register relating to the minor, or

(b) at the first hearing of the summons apply for directions as to proof of birth of the minor in some other manner.

(6) The name of each party to the proceedings shall be qualified by a brief description, in the body of the summons, of his interest in, or relation to, the minor.

(7) Unless the court otherwise directs, the summons shall state the whereabouts of the minor or, as the case may be, that the plaintiff is unaware of his whereabouts.

(8) Upon being served with the summons, every defendant other than the minor shall forthwith lodge in the registry out of which the summons issued a notice stating the address of the defendant and the whereabouts of the minor or, as the case may be, that the defendant is unaware of his whereabouts and, unless the court otherwise directs, serve a copy of the same upon the plaintiff.

(9) Where any party other than the minor changes his address or becomes aware of any change in the whereabouts of the minor after the issue or, as the case may be, service of the summons, he shall, unless the court otherwise directs, forthwith lodge notice of the change in the registry out of which the summons issued and serve a copy of the notice on every other party.

(10) The summons shall contain a notice to the defendant informing him of the requirements of paragraphs (8) and (9).

(11) In this rule any reference to the whereabouts of a minor is a reference to the address at which and the person with whom he is living and any other information relevant to the question where he may be found.

Enforcement of order by tipstaff

5.2

The power of the High Court to secure, through an officer attending upon the court, compliance with any direction relating to a ward of court may be exercised by an order addressed to the tipstaff.

Where minor ceases to be a ward of court

5.3

(1) A minor who, by virtue of section 41(2) of the Supreme Court Act 1981[^f00044], becomes a ward of court on the issue of a summons under rule 5.1 shall cease to be a ward of court–

(a) if an application for an appointment for the hearing of the summons is not made within the period of 21 days after the issue of the summons, at the expiration of that period;

(b) if an application for such an appointment is made within that period, on the determination of the application made by the summons unless the court hearing it orders that the minor be made a ward of court.

(2) Nothing in paragraph (1) shall be taken as affecting the power of the court under section 41(3) of the said Act to order that any minor who is for the time being a ward of court shall cease to be a ward of court.

(3) If no application for an appointment for the hearing of a summons under rule 5.1 is made within the period of 21 days after the issue of the summons, a notice stating whether the applicant intends to proceed with the application made by the summons must be left at the registry in which the matter is proceeding immediately after the expiration of that period.

Adoption of minor who is a ward of court

5.4

(1) An application for leave–

(a) to commence proceedings to adopt a minor who is a ward or

(b) to commence proceedings to free such a minor for adoption,

may be ex parte to a district judge.

(2) Where a local authority has been granted leave to place a minor who is a ward with foster parents with a view to adoption it shall not be necessary for an application to be made for leave under paragraph (1)(a) or (b) unless the court otherwise directs.

(3) If the applicant for leave under paragraph (1)(a) or (b), or a local authority which has applied for leave as referred to in paragraph (2), or a foster parent so requests, the district judge may direct that any subsequent proceedings shall be conducted with a view to securing that the proposed adopter is not seen by or made known to any respondent or prospective respondent who is not already aware of his identity except with his consent.

(4) In paragraphs (1) and (3) “proceedings” means proceedings in the High Court or in a county court.

PART VI — CHILD ABDUCTION AND CUSTODY ACT 1985

Interpretation

6.1

In this Part, unless the context otherwise requires–

(a) “the Act” means the Child Abduction and Custody Act 1985[^f00045] and words or expressions bear the same meaning as in that Act;

(b) “the Hague Convention” means the convention defined in section 1(1) of the Act and “the European Convention” means the convention defined in section 12(1) of the Act.

Mode of application

6.2

(1) Except as otherwise provided by this Part, every application under the Hague Convention and the European Convention shall be made by originating summons, which shall be in Form No. 10 in Appendix A to the Rules of the Supreme Court 1965[^f00046].

(2) An application in custody proceedings for a declaration under section 23(2) of the Act shall be made by summons in those proceedings.

Contents of originating summons: general provisions

6.3

(1) The originating summons under which any application is made under the Hague Convention or the European Convention shall state–

(a) the name and date of birth of the child in respect of whom the application is made;

(b) the names of the child’s parents or guardians;

(d) the interest of the plaintiff in the matter and the grounds of the application; and

(e) particulars of any proceedings (including proceedings out of the jurisdiction and concluded proceedings) relating to the child, and shall be accompanied by all relevant documents including but not limited to the documents specified in Article 8 of the Hague Convention or, as the case may be, Article 13 of the European Convention.

Contents of originating summons: particular provisions

6.4

(1) In applications under the Hague Convention, in addition to the matters specified in rule 6.3–

(a) the originating summons under which an application is made for the purposes of Article 8 for the return of a child shall state the identity of the person alleged to have removed or retained the child and, if different, the identity of the person with whom the child is presumed to be;

(b) the originating summons under which an application is made for the purposes of Article 15 for a declaration shall identify the proceedings in which the request that such a declaration be obtained was made.

(2) In applications under the European Convention, in addition to the matters specified in rule 6.3 the originating summons shall identify the decision relating to custody or rights of access which is sought to be registered or enforced or in relation to which a declaration that it is not to be recognised is sought.

Defendants

6.5

The defendants to an application under the Act shall be–

(a) the person alleged to have brought into the United Kingdom the child in respect of whom an application under the Hague Convention is made;

(b) the person with whom the child is alleged to be;

(d) the person in whose favour a decision relating to custody has been made if he is not otherwise a party; and

(e) any other person who appears to the court to have a sufficient interest in the welfare of the child.

Acknowledgement of service

6.6

The time limited for acknowledging service of an originating summons by which an application is made under the Hague Convention or the European Convention shall be seven days after service of the originating summons (including the day of service) or, in the case of a defendant referred to in rule 6.5(d) or (e), such further time as the Court may direct.

Evidence

6.7

(1) The plaintiff, on issuing an originating summons under the Hague Convention or the European Convention, may lodge affidavit evidence in the principal registry in support of his application and serve a copy of the same on the defendant with the originating summons.

(2) A defendant to an application under the Hague Convention or the European Convention may lodge affidavit evidence in the principal registry and serve a copy of the same on the plaintiff within seven days after service of the originating summons on him.

(3) The plaintiff in an application under the Hague Convention or the European Convention may within seven days thereafter lodge in the principal registry a statement in reply and serve a copy thereof on the defendant.

Hearing

6.8

Any application under the Act (other than an application (a) to join a defendant, (b) to dispense with service or extend the time for acknowledging service, or (c) for the transfer of proceedings) shall be heard and determined by a judge and shall be dealt with in chambers unless the court otherwise directs.

Dispensing with service

6.9

The court may dispense with service of any summons (whether originating or ordinary) in any proceedings under the Act.

Adjournment of summons

6.10

The hearing of the originating summons under which an application under the Hague Convention or the European Convention is made may be adjourned for a period not exceeding 21 days at any one time.

Stay of proceedings

6.11

(1) A party to proceedings under the Hague Convention shall, where he knows that an application relating to the merits of rights of custody is pending in or before a relevant authority, file in the principal registry a concise statement of the nature of the application which is pending, including the authority before which it is pending.

(2) A party–

(a) to pending proceedings under section 16 of the Act, or

(b) to proceedings as a result of which a decision relating to custody has been registered under section 16 of the Act,

shall, where he knows that such an application as is specified in section 20(2) of the Act[^f00047] is pending in or before a relevant authority, file a concise statement of the nature of the application which is pending.

(3) The proper officer shall on receipt of such a statement as is mentioned in paragraph (1) or (2) notify the relevant authority in which or before whom the application is pending and shall subsequently notify it or him of the result of the proceedings.

(4) On the court receiving notification under paragraph (3) above or equivalent notification from the Court of Session or the High Court in Northern Ireland–

(a) where the application relates to the merits of rights of custody, all further proceedings in the action shall be stayed unless and until the proceedings under the Hague Convention in the High Court, Court of Session or High Court in Northern Ireland, as the case may, are dismissed, and the parties to the action shall be notified by the proper officer of the stay and of any such dismissal accordingly, and

(b) where the application is such a one as is specified in section 20(2) of the Act, the proper officer shall notify the parties to the action.

(5) In this rule “relevant authority” includes the High Court, a county court, a magistrates' court, the Court of Session, a sheriff court, a children’s hearing within the meaning of Part III of the Social Work (Scotland) Act 1968[^f00048] the High Court in Northern Ireland, a county court in Northern Ireland, a court of summary jurisdiction in Northern Ireland or the Secretary of State.

Transfer of proceedings

6.12

(1) At any stage in the proceedings under the Act the court may, of its own motion or on the application by summons of any party to the proceedings issued on two days' notice, order that the proceedings be transferred to the Court of Session or the High Court in Northern Ireland.

(2) Where an order is made under paragraph (1) the proper officer shall send a copy of the order, which shall state the grounds therefor, together with the originating summons, the documents accompanying it and any evidence, to the Court of Session or the High Court in Northern Ireland, as the case may be.

(3) Where proceedings are transferred to the Court of Session or the High Court in Northern Ireland the costs of the whole proceedings both before and after the transfer shall be at the discretion of the Court to which the proceedings are transferred.

(4) Where proceedings are transferred to the High Court from the Court of Session or the High Court in Northern Ireland the proper officer shall notify the parties of the transfer and the proceedings shall continue as if they had begun by originating summons under rule 6.2.

Interim directions

6.13

An application for interim directions under section 5 or section 19 of the Act may where the case is one of urgency be made ex parte on affidavit but shall otherwise be made by summons.

Obtaining authenticated copies of decisions

6.14

Any person who intends to make an application under the Hague Convention in a Contracting State other than the United Kingdom shall on satisfying the court as to that intention be entitled to obtain an office copy sealed with the seal of the Supreme Court of any order made in the High Court relating to the child in respect of whom the application is to be made.

Revocation and variation of registered decisions

6.15

(1) This rule applies to decisions which have been registered under section 16 of the Act and are subsequently varied or revoked by an authority in the Contracting State in which they were made.

(2) The court shall, on cancelling the registration of a decision which has been revoked, notify–

(a) the person appearing to the court to have care of the child,

(b) the person on whose behalf the application for registration of the decision was made, and

of the cancellation.

(3) The court shall, on being notified of the variation of a decision, notify–

(a) the person appearing to the court to have care of the child, and

(b) any party to the application for registration of the decision

of the variation and any such person may apply by summons in the proceedings for the registration of the decision, for the purpose of making representations to the court before the registration is varied.

(4) Any person appearing to the court to have an interest in the matter may apply by summons in the proceedings for the registration of a decision for the cancellation or variation of the registration.

Orders for disclosure of information

6.16

At any stage in proceedings under the European Convention the court may, if it has reason to believe that any person may have relevant information about the child who is the subject of those proceedings, order that person to disclose such information and may for that purpose order that the person attend before it or file affidavit evidence.

PART VII — ENFORCEMENT OF ORDERS

Chapter 1. — General

Enforcement of order for payment of money, etc

7.1

(1) Before any process is issued for the enforcement of an order made in family proceedings for the payment of money to any person, an affidavit shall be filed verifying the amount due under the order and showing how that amount is arrived at.

In a case to which CCR Order 25 rule 11 (which deals with the enforcement of a High Court judgement in the county court) applies, the information required to be given in an affidavit under this paragraph may be given in the affidavit filed pursuant to that rule.

(2) Except with the leave of the district judge, no writ of fieri facias or warrant of execution shall be issued to enforce payment of any sum due under an order for ancillary relief or an order made under the provisions of section 27 of the Act of 1973[^f00049] where an application for a variation order is pending.

(3) Where a warrant of execution has been issued to enforce an order made in family proceedings pending in the principal registry which are treated as pending in a divorce county court, the goods and chattels against which the warrant has been issued shall, wherever they are situate, be treated for the purposes of section 103 of the County Courts Act 1984[^f00050] as being out of the jurisdiction of the principal registry.

(4) The Attachment of Earnings Act 1971[^f00051] and CCR Order 27 (which deals with attachment of earnings) shall apply to the enforcement of an order made in family proceedings in the principal registry which are treated as pending in a divorce county court as if the order were an order made by such a court.

(5) Where an application under CCR Order 25, rule 3 (which deals with the oral examination of a judgement debtor) relates to an order made by a divorce county court—

(a) the application shall be made to such divorce county court as in the opinion of the applicant is nearest to the place where the debtor resides or carries on business, and

(b) there shall be filed with the application the affidavit required by paragraph (1) of this rule and, except where the application is made to the court in which the order sought to be enforced was made, a copy of the order shall be exhibited to the affidavit;

and accordingly paragraph (2) of the said rule 3 shall not apply.

Committal and injunction

7.2

(1) Subject to RSC Order 52, rule 6 (which, except in certain cases, requires an application for an order of committal to be heard in open court) an application for an order of committal in family proceedings pending in the High Court shall be made by summons.

(2) Where no judge is conveniently available to hear the application, then, without prejudice to CCR Order 29, rule 3(2) (which in certain circumstances gives jurisdiction to a district judge) an application for—

(a) the discharge of any person committed, or

(b) the discharge by consent of an injunction granted by a judge,

may be made to the district judge who may, if satisfied of the urgency of the matter and that it is expedient to do so, make any order on the application which a judge could have made.

(3) Where an order or warrant for the committal of any person to prison has been made or issued in family proceedings pending in the principal registry which are treated as pending in a divorce county court, that person shall, wherever he may be, be treated for the purposes of section 122 of the County Courts Act 1984[^f00052] as being out of the jurisdiction of the principal registry; but if the commital is a failure to comply with the terms of an injunction, the order or warrant may, if a judge so directs, be executed by the tipstaff within any county court district.

(4) For the purposes of section 118 of the County Courts Act 1984[^f00053] in its application to the hearing of family proceedings at the Royal Courts of Justice, the tipstaff shall be deemed to be an officer of the court.

Transfer of county court order to High Court

7.3

(1) Any person who desire the transfer to the High Court of any order made by a divorce county court in family proceedings except an order for periodical payments or for the recovery of arrears of periodical payments shall apply to the court ex parte by affidavit stating the amount which remains due under the order, and on the filing of the application the transfer shall have effect.

(2) Where an order is so transferred, it shall have the same force and effect and the same proceedings may be taken on it as if it were an order of the High Court.

Chapter 2. — Judgement summonses

General provisions

7.4

(1) In this chapter, unless the context otherwise requires—

“order” means an order made in family proceedings for the payment of money;

“judgement creditor” means a person entitled to enforce an order under section 5 of the Debtors Act 1869[^f00054];

“debtor” means a person liable under an order;

“judgement summons” means a summons under the said section 5 requiring a debtor to appear and be examined on oath as to his means.

(2) An application for the issue of a judgement summons may be made—

(a) in the case of an order of the High Court, to the principal registry, a district registry or a divorce county court, whichever in the opinion of the judgement creditor is most convenient,

(b) in the case of an order of a divorce county court, to whichever divorce county court is in the opinion of the judgement creditor most convenient,

having regard (in either case) to the place where the debtor resides or carries on business and irrespective of the court or registry in which the order was made.

(3) The application shall be made by filing a request in Form M 16 together with the affidavit required by rule 7.1(1) and, except where the application is made to the registry or divorce county court in which the order was made, a copy of the order shall be exhibited to the affidavit.

(4) A judgement summons shall not be issued without the leave of a judge if the debtor is in default under an order of commitment made on a previous judgement summons in respect of the same order.

(5) Every judgement summons shall be in Form M 17 and shall be served on the debtor personally not less than 10 days before the hearing and at the time of service there shall be paid or tendered to the debtor a sum reasonably sufficient to cover his expenses in travelling to and from the court at which he is summoned to appear.

(6) CCR Order 28, rule 3 (which deals among other things with the issue of successive judgement summonses) shall apply to a judgement summons, whether issued in the High Court or a divorce county court, but as if the said rule 3 did not apply CCR Order 7, rule 19(2).

(7) Successive judgement summonses may be issued notwithstanding that the judgement debtor has ceased to reside or carry on business at the address stated in Form M 16 since the issue of the original judgement summons.

(8) Where an applicant has obtained one or more orders in the same application but for the benefit of different persons—

(a) he shall be entitled to issue a judgement summons in respect of those orders on behalf of any judgement creditor without (where the judgement creditor is a child) seeking leave to act as his next friend; and

(b) only one judgement summons need be issued in respect of those orders.

(9) On the hearing of the judgement summons the judge may—

(a) where the order is for lump sum provision or costs, or

(b) where the order is for maintenance pending suit or other periodical payments and it appears to him that the order would have been varied or suspended if the debtor had made an application for that purpose,

make a new order for payment of the amount due under the original order, together with the costs of the judgement summons, either at a specified time or by instalments.

(10) If the judge makes an order or committal, he may direct its execution to be suspended on terms that the debtor pays to the judgement creditor the amount due, together with the costs of the judgement summons, either at a suspended time or by instalments, in addition to any sums accruing due under the original order.

(11) All payments under a new order or an order of committal shall be made to the judgement creditor unless the judge otherwise directs.

(12) Where an order of committal is suspended on such terms as are mentioned in paragraph (10)—

(a) all payments thereafter made under the said order shall be deemed to be made, first, in or towards the discharge of any sums from time to time accruing due under the original order and, secondly, in or towards the discharge of a debt in respect of which the judgement summons was issued and the costs of the summons;

(b) CCR Order 28, rule 7(4) and (5) (which deal with an application for a further suspension) shall apply to the said order, whether it was made in the High Court or a divorce county court; and

(c) the said order shall not be issued until the judgement creditor has filed an affidavit of default on the part of the debtor.

Special provisions as to judgement summonses in the High Court

7.5

(1) RSC Order 38, rule 2(3) (which enables evidence to be given by affidavit in certain cases) shall apply to a judgement summons issued in the High Court as if it were an originating summons.

(2) Witnesses may be summoned to prove the means of the debtor in the same manner as witnesses are summoned to give evidence on the hearing of a cause, and writs of subpoena may for that purpose be issued out of the registry in which the judgement summons is issued.

(3) Where the debtor appears at the hearing, the travelling expenses paid to him, if the judge so directs, be allowed as expenses of a witness, but if the debtor appears at the hearing and no order of committal is made, the judge may allow to the debtor, by way of set-off otherwise, his proper costs, including compensation for loss of time, as upon an attendance by a defendant at a trial in court.

(4) Where a new order or an order of committal is made, the proper officer of the registry in which the judgement summons was issued shall send notice of the order to the debtor and, if the original order was made in another registry, to the proper officer of that registry.

(5) An order of commitment shall be directed to the tipstaff, for execution by him, or to the proper officer of the county court within the district of which the debtor is to be found, for execution by a deputy tipstaff.

(6) Unless the judge otherwise directs, the judgement creditor’s costs of and incidental to the judgement summons shall be fixed and allowed without taxation in accordance with RSC Order 62, rule 7(4).

(7) Where the judge directs that the judgement creditor’s costs of and incidental to a judgement summons are to be taxed, RSC Order 62 shall have effect in relation to those costs with such modifications as may be necessary.

Special provisions as to judgement summonses in divorce county courts

7.6

(1) CCR Order 25, rules 3, 4 and 11 (which deal with the oral examination of debtors and the execution of High Court orders in county courts) and Order 28, rules 1, 2, 3(2), 7(3) and 9(2) (which deal with the issue of a judement summons in a county court and the subsequent procedure) shall not apply to a judgement summons issued in a divorce county court.

(2) CCR Order 28, rule 9(1) (which relates to a judgement summons heard in a county court on a judgement or order of the High Court) shall apply to such a summons as if for the words “the High Court” there were substituted the words “any other court” where they first appear and “that other court” where they next appear.

(3) CCR Order 28, rule 7(1) and (2) (which relates to the suspension of a committal order) shall apply to such a summons subject to rule 7.4(10) and (11) of these Rules.

Chapter 3. — Registration and Enforcement of Custody Orders

Registration under Family Law Act 1986

7.7

(1) In this Chapter, unless the context otherwise requires—

“the appropriate court”, means in relation to Scotland, the Court of Session and, in relation to Northern Ireland, the High Court in Northern Ireland;

“the Deputy Principal Clerk” means the Deputy Principal Clerk of Session;

“Part I order” means an order under Part I of the Act of 1986;

“the Master” means the Master (Care and Protection) of the High Court in Northern Ireland;

“registration” means registration under Part I of the Act of 1986, and “register” and “registerd” shall be construed accordingly.

(2) The prescribed officer for the purpoesof sections 27(4) and 28(1) of the Act shall be the chief clerk of the family proceedings department of the principal registry and the functions of the court under section 27(3) and 28(1) of the Act of 1986 shall be performed by the proper officer.

Application to register English Part I order

7.8

(1) An application under section 27 of the Act of 1986 for the registration of a Part I order made by the High Court shall be made by lodging in the principal registry or the district registry, as the case may be, a certified copy of the order, together with a copy of any order which has varied any of the terms of the original order and an affidavit by the applicant in support of his application, with a copy thereof.

(2) An application under section 27 of the Act of 1986 for the registration of a Part I order made by a county court shall be made by filing in that court a certified copy of the order, together with a certified copy of any order which has varied any of the terms of the original order and an affidavit in support of the application, with a copy thereof.

(3) The affidavit in support under paragraphs (1) and (2) above shall state—

(a) the name and address of the applicant and his interest under the order;

(b) the name and date of birth of the child in respect of whom the order was made, his whereabouts or suspected whereabouts and the name of any person with whom he is alleged to be;

(d) whether the order is to be registered in Scotland or Northern Ireland or in both jurisdictions;

(e) that, to the best of the applicant’s information and belief, the order is in force;

(f) whether, and if so where, the order is already registered; and

(g) details of any order known to the applicant which affects the child and is in force in the jurisdiction in which the Part I order is to be registered;

and there shall be exhibited to the affidavit any document relevant to the application.

(4) Where the documents referred to in paragraphs (1) and (3), or (2) and (3), as the case may be are to be sent to the appropriate court, the proper officer shall—

(a) retain the original affidavit and send the other documents to the Deputy Principal Clerk or to the Master, as the case may be;

(b) record the fact of transmission in the records of the court; and

(5) On receipt of notice of the registration of a Part I order in the appropriate court the proper officer shall record the fact of registration in the records of the court.

(6) If it appears to the proper officer that the Part I order is no longer in force or that the child has attained the age of 16, he shall refuse to send the documents to the appropriate court and shall within 14 days of such refusal give notice of it, and there reason for it, to the applicant.

(7) If the proper officer refuses to send the documents to the appropriate court, the applicant may apply to the judge in chambers for an order that the documents (or any of them) be sent to the appropriate court.

Registration of Scottish and Northern Ireland orders

7.9

On receipt of a certified copy of an order made in Scotland or Northern Ireland for registration, the prescribed officer shall—

(a) record the order in the register by entering particulars of—

(i) the name and address of the applicant and his interest under the order;

(ii) the name and whereabouts or suspected whereabouts of the child, his date of birth, and the date on which he will attain the age of 16; and

(iii) the terms of the order, its date and the court which made it;

(b) file the certified copy and accompanying documents; and

(c) give notice to the court which sent the certified copy and to the applicant for registration that the order has been registered.

Revocation and variation of English order

7.10

(1) Where a Part I order which is registered in the appropriate court is revoked or varied, the proper officer of the court making the subsequent order shall—

(a) send a certified copy of that order to the Deputy Principal Clerk or to the Master, as the case may be, and to the court which made the Part I order, if that court is different from the court making the subsequent order, for filing by that court;

(b) record the fact of transmission in the records of the court; and

(2) On receipt of notice from the appropriate court of the amendment of its register, the proper officers of the court which made the Part I order and of the court which made the subsequent order shall each record the fact of amendment.

Registration of revoked, recalled or varied Scottish or Northern Ireland order

7.11

(1) On receipt of a certified copy of an order made in Scotland or Northern Ireland which revokes, recalls or varies a registered Part I order, the proper officer shall enter particulars of the revocation, recall or variation, as the case may be, in the register, and give notice of the entry to—

(a) the court which sent the certified copy,

(b) if different, the court which made the Part I order,

(d) if different, the applicant for the revocation, recall or variation of the order.

(2) An application under section 28(2) of the Act of 1986 shall be made by summons and may be heard and determined by a district judge.

(3) If the applicant for the Part I order is not the applicant under section 28(2) of the Act of 1986 he shall be made a defendant to the application.

(4) Where the court cancels a registration of its own motion or on an application under paragraph (2), the proper officer shall amend the register accordingly and shall give notice of the amendment to the court which made the Part I order.

Interim directions

7.12

(1) An application for interim directions under section 29 of the Act of 1986 may be heard and determined by a district judge.

(2) The parties to the proceedings for enforcement and, if he is not a party thereto, the applicant for the Part I order, shall be made parties to the application.

Staying and dismissal of enforcement proceedings

7.13

(1) An application under section 30(1) or 31(1) of the Act of 1986 may be heard and determined by a district judge.

(2) The parties to the proceedings for enforcement which are sought to be stayed and, if he is not a party thereto, the applicant for the Part I order shall be made parties to an application under either of the said sections.

(3) Where the court makes an order under section 30(2) or (3) or section 31(3) of the Act of 1986, the proper officer shall amend the register accordingly and shall give notice of the amendment to the court which made the Part I order and to the applicants for registration, for enforcement and for the stay or dismissal of the proceedings for enforcement.

Particulars of other proceedings

7.14

A party to proceedings for or relating to a Part I order who knows of other proceedings (including proceedings out of the jurisdiction and concluded proceedings) which relate to the child concerned shall file an affidavit stating—

(a) in which jurisdiction and court the other proceedings were instituted;

(b) the nature and current state of such proceedings and the relief claimed or granted;

(d) if applicable, and if known, the reasons why the relief claimed in the proceedings for or relating to the Part I order was not claimed in the other proceedings.

Inspection of register

7.15

The following persons, namely—

(a) the applicant for registration of a registered Part I order,

(b) any person who satisfies a district judge that he has an interest under the Part I order, and

may inspect any entry in the register relating to the order and may bespeak copies of the order and of any document relating thereto.

Chapter 4. — Enforcement of maintenance orders

Interpretation

7.16

In this chapter—

“the Act of 1920” means the Maintenance Orders (Facilities for Enforcement) Act 1920[^f00056];

“the Act of 1950” means the Maintenance Orders Act 1950[^f00057];

“the Act of 1958” means the Maintenance Orders Act 1958[^f00058];

“the Act of 1965” means the Matrimonial Causes Act 1965[^f00059];

“the Act of 1971” means the Attachment of Earnings Act 1971[^f00060];

“the Act of 1972” means the Maintenance Orders (Reciprocal Enforcement) Act 1972[^f00061];

“English maintenance order” means a maintenance order made in the High Court.

Registration etc. of orders under Act of 1920

7.17

(1) The prescribed officer for the purposes of section 1(1) of the Act of 1920 shall be the senior district judge, and on receiving from the Secretary of State a copy of a maintenance order made by a court in any part of Her Majesty’s dominions outside the United Kingdom to which the Act of 1920 extends he shall cause the order to be registered in the register kept for the purpose of that Act (in this rule referred to as “the register”).

The copy of the order received from the Secretary of State shall be filed in the principal registry.

(2) An application for the transmission of an English maintenance order under section 2 of the Act of 1920 shall be made to the district judge by lodging in the principal registry a certified copy of the order and an affidavit stating the applicant’s reasons for believing that the person liable to make payments under the order is resident in some part of Her Majesty’s dominions outside the United Kingdom to which the Act of 1920 extends, together with full particulars, so far as known to the applicant, of that person’s address and occupation and any other information which may be required by the law of that part of Her Majesty’s dominions for the purpose of the enforcement of the order.

(3) If it appears to the district judge mentioned in paragraph (2) that the person liable to make payments under the English maintenance order is resident in some part of Her Majesty’s dominions outside the United Kingdom to which the Act of 1920 extends, he shall send the certified copy of the order to the Secretary of State for transmission to the Governor of that part of Her Majesty’s dominions.

Particulars of any English maintenance order sent to the Secretary of State under the said section 2 shall be entered in the register and the fact that this has been done shall be noted in the records of the court.

(4) Where an English maintenance order has been made in a cause or matter proceeding in a district registry, an application for the transmission of the order under the said section 2 may be made to the district judge of that registry and paragraphs (2) and (3) of this rule shall have effect as if for reference to the principal registry there were substituted references to the district registry.

The proper officer shall send to the principal registry for entry in the register particulars of any order sent by him to the Secretary of State.

(5) Any person who satisfies a district judge that he is entitled to or liable to make payments under an English maintenance order or a maintenance order made by a court in any part of Her Majesty s dominions outside the United Kingdom to which the Act of 1920 extends or a solicitor acting on behalf of any such person or, with the leave of a district judge, any other person may inspect the register and bespeak copies of any order which has been registered and of any document filed therewith.

Proceedings under Part II ofAct of 1950

Interpretation of rules 7.18 to 7.21

7.18

In this rule and rules 7.19 to 7.21

“the clerk of the Court of Session” means the deputy principal clerk in charge of the petition department of the Court of Session;

“maintenance order” means a maintenance order to which section 16 of the Act of 1950[^f00062] applies;“Northern Irish order” means a maintenance order made by the Supreme Court of Northern Ireland;

“register” means the register kept for the purposes of the Act of 1950;

“the registrar in Northern Ireland” means the chief registrar of the Queen’s Bench Division (Matrimonial) of the High Court of Justice in Northern Ireland;

“registration” means registration under Part 11 of the Act of 1950 and “registered” shall be construed accordingly;

“Scottish order” means a maintenance order made by the Court of Session.

Registration etc of English order

7.19

(1) An application for the registration of an English maintenance order may be made by lodging with the proper officer a certified copy of the order, together with an affidavit by the applicant (and a copy thereof) stating—

(a) the address in the United Kingdom, and the occupation, of the person liable to make payments under the order;

(b) the date of service of the order on the person liable to make payments thereunder or, if the order has not been served, the reason why service has not been effected;

(c) the reason why it is convenient that the order should be enforceable in Scotland or Northern Ireland, as the case may be;

(d) the amount of any arrears due to the applicant under the order; and

(e) that the order is not already registered.

(2) If it appears to the district judge that the person liable to make payments under the order resides in Scotland or Northern Ireland and that it is convenient that the order should be enforceable there, the proper officer shall (subject to paragraph (6) below) send a certified copy of the order and the applicant’s affidavit to the clerk of the Court of Session or to the registrar in Northern Ireland, as the case may be.

(3) On receipt of notice of the registration of an English maintenance order in the Court of Session or the Supreme Court of Northern Ireland, the proper officer shall—

(a) cause particulars of the notice to be entered in the register;

(b) note the fact of registration in the records of the court; and

(4) Where an English order registered in the Court of Session or the Supreme Court of Northern Ireland is discharged or varied the proper officer of the court ordering the discharge or variation shall give notice thereof to the clerk of the Court of Session or to the registrar in Northern Ireland, as the case may be, by sending him a certified copy of the order discharging or varying the maintenance order.

(5) Where the registration of an English maintenance order registered in the Court of Session or the Supreme Court of Northern Ireland is cancelled under section 24(1) of the Act of 1950[^f00063], notice of the cancellation shall be sent (as required by section 24(3)(a) of that Act) to the proper officer; and on receipt of such notice he shall cause particulars of it to be entered in Part I of the register.

(6) Where the order sought to be registered was made in a county court, this rule shall apply as though references to the Court of Session, the clerk of the Court of Session, the Supreme Court of Northern Ireland and the registrar of Northern Ireland were references to the sheriff court, the sheriff-clerk of the sheriff court, the court of summary jurisdiction and the clerk of the court of summary jurisdiction respectively.

Registration etc of Scottish and Northern Irish orders

7.20

(1) In relation to a Scottish or Northern Irish order the prescribed officer for the purposes of section 17(2) of the Act of 1950 shall be the proper officer of the principal registry.

(2) On receipt of a certified copy of a Scottish or Northern Irish order for registration, the proper officer shall—

(a) cause the order to be registered in Part II of the register and notify the clerk of the Court of Session or the registrar in Northern Ireland, as the case may be, that this has been done; and

(b) file the certified copy and any statutory declaration or affidavit as to the amount of any arrears due under the order.

(3) An application under section 2(2) of the Act of 1950 by a person liable to make payments under a Scottish order registered in the High Court to adduce before that court such evidence as is mentioned in that section shall be made by lodging a request for an appointment before a district judge of the principal registry; and notice of the date, time and place fixed for the hearing shall be sent by post to the applicant and to the person entitled to payments under the order.

(4) The prescribed officer to whom notice of the discharge or variation of a Scottish or Northern Irish order registered in the High Court is to be given under section 23(1)(a) of the Act of 1950[^f00064] shall be the proper officer, and on receipt of the notice he shall cause particulars of it to be registered in Part II of the register.

(5) An application under section 24(1) of the Act of 1950 for the cancellation of the registration of a Scottish or Northern Irish order shall be made ex parte by affidavit to district judge of the principal registry who, if he cancels the registration, shall note the cancellation in Part 11 of the register, whereupon the proper officer shall send notice of the cancellation to the clerk of the Court of Session or the registrar in Northern Ireland, as the case may be, and also to the clerk of any magistrates' court in which the order has been registered in accordance with section 2(5) of the Act of 1958[^f00065].

(6) A person entitled to payments under a Scottish or Northern Irish order registered in the High Court who wishes to take proceedings for or with respect to the enforcement of the order in a district registry may apply by letter to the senior district judge of the principal registry who may, if satisfied that the order ought to be enforceable in the district registry, make an order accordingly on such terms, if any, as may be just.

Inspection of register

7.21

Any person who satisfies a district judge of the principal registry that he is entitled to or liable to make payments under a maintenance order of a superior court or a solicitor acting on behalf of any such person or, with the leave of the district judge, any other person may inspect the register and bespeak copies of any such order which is registered in the High Court under Part 11 of the Act of 1950 and of any statutory declaration or affidavit filed therewith.

Registration etc of certain orders under the Act of 1958

Application and interpretation of rules 7.22 to 7.29

7.22

Section 21 of the Act of 1958[^f00066] shall apply to the interpretation of this rule and rules 7.23 to 7.29 as it applies to the interpretation of that Act; and in those rules—

“cause book” includes cause card; and

“the register” means any register kept for the purposes of the Act of 1958.

Application for registration

7.23

(1) An application under section 2(1) of the Act of 1958 for the registration in a magistrates' court of a maintenance order shall be made by lodging with the proper officer—

(i) a certified copy of the maintenance order, and

(ii) two copies of the application in Form No. 115 in Appendix A to the Rules of the Supreme Court 1965[^f00067].

(2) The period required to be prescribed by rules of court for the purpose of section 2(2) of the Act of 1958 shall be 14 days.

(3) The proper officer shall cause the certified copy of an order required by the said section 2(2) to be sent to the clerk of a magistrates' court to be endorsed with a note that the application for registration of the order has been granted and to be accompanied by a copy of the application lodged under paragraph (1).

(4) On receipt of notice that a maintenance order has been registered in a magistrates' court in accordance with section 2(5) of the Act of 1958, the proper officer shall enter particulars of the registration in the records of the court.

Registration in a magistrates' court of an order registered in the High Court

7.24

On receipt of notice that a maintenance order registered in the High Court in accordance with section 17(4) of the Act of 1950 has been registered in a magistrates' court in accordance with section 2(5) of the Act of 1958, the proper officer shall cause particulars of the registration to be entered in Part II of the register.

Registration of magistrates' court order

7.25

On receipt of a certified copy of a magistrates' court order sent to him pursuant to section 2(4)(c) of the Act of 1958, the proper officer shall cause the order to be registered in the High Court by filing the copy and making an entry in the register or, where the copy order is received in a district registry, in the cause book and shall send notice to the clerk of the magistrates' court that the order has been duly registered.

Registration in the High Court of an order registered in a magistrates' court

7.26

(1) This rule applies where a sheriff court in Scotland or a magistrates' court in Northern Ireland has made an order for the registration in the High Court of an order previously registered in a magistrates' court in England and Wales in accordance with section 17(4) of the Act of 1950, and has sent a certified copy of the maintenance order to the proper officer of the High Court, pursuant to section 2(4)(c) of the Act of 1958.

(2) On receipt of the certified copy, the proper officer shall cause the order to be registered in the High Court by filing the copy and making an entry in the register, and shall send notice of the registration to the clerk of the original court and also to the clerk of the magistrates' court in which the order was registered in accordance with section 17(4) of the Act of 1950.

Variation or discharge of registered order

7.27

(1) Where the court makes an order varying or discharging an order registered in a magistrates' court under Part I of the Act of 1958, the proper officer shall send a certified copy of the first-mentioned order to the clerk of the magistrates' court.

(2) Where a certified copy of an order varying an order registered in a magistrates' court under Part I of the Act of 1958 is received from the clerk of the magistrates' court, the proper officer shall file the copy and enter particulars of the variation on the same documents or in the same records as particulars of registration are required by rule 7.23(4) to be entered.

(3) Where a certified copy of an order varying or discharging an order made by a magistrates' court and registered in the High Court under Part I of the Act of 1958 is received from the clerk of the magistrates' court, the proper officer shall—

(a) file the copy,

(b) enter particulars of the variation or discharge in the register or, where the copy order is received in a district registry, in the cause book, and

(i) who has given notice to the proper officer of proceedings taken in that court for the enforcement of the registered order, or

(ii) to whom any payment is to be made under an attachment of earnings order made by the High Court for the enforcement of the registered order.

Appeal from variation etc of order by magistrates' court

7.28

An appeal to the High Court under section 4(7) of the Act of 1958[^f00067] shall be heard and determined by a Divisional Court of the Family Division, and rule 8.2 shall apply as it applies in relation to an appeal from a magistrates' court under the Domestic Proceedings and Magistrates' Courts Act 1978[^f00068].

Cancellation of registration

7.29

(1) A notice under section 5 of the Act of 1958[^f00069] by a person entitled to receive payments under an order registered in the High Court must be given to the proper officer.

(2) Where the High Court gives notice under the said section 5, the proper officer shall endorse the notice on the certified copy mentioned in rule 7.27(1).

(3) Where notice under the said section 5 is given in respect of an order registered in the High Court, the proper officer on being satisfied by an affidavit by the person entitled to receive payments under the order that no process for the enforcement of the order issued before the giving of the notice remains in force, shall—

(a) cancel the registration by entering particulars of the notice in the register or cause book, as the case may be, and

(b) send notice of the cancellation to the clerk of the court by which the order was made and, where applicable, to the clerk of the magistrates' court in which the order was registered in accordance with section 17(4) of the Act of 1950 stating, if such be the case, that the cancellation is in consequence of a notice given under subsection (1) of the said section 5.

(4) On receipt of notice from the clerk of a magistrates' court that the registration in that court under the Act of 1958 of an order made by the High Court or a county court has been cancelled, the proper officer shall enter particulars of the cancellation on the same documents or in the same records as particulars of registration are required by rule 7.23(4) to be entered.

(5) On receipt of notice from the clerk of a magistrates' court that the registration in that court under the Act of 1958 of an order registered in the High Court in accordance with section 17(4) of the Act of 1950 has been cancelled, the proper officer shall note the cancellation in Part II of the register.

Proceedings under Act of 1972

Interpretation of rules 7.31 to 7.39

7.30

Expressions used in rules 7.31 to 7.38 which are used in the Act of 1972 have the same meanings as in that Act.

Application for transmission of maintenance order to reciprocating country

7.31

An application for a maintenance order to be sent to a reciprocating country under section 2 of the Act of 1972[^f00070] shall be made by lodging with the court—

(a) an affidavit by the applicant stating—

(i) the applicant’s reason for believing that the payer under the maintenance order is residing in that country, and

(ii) the amount of any arrears due to the applicant under the order, the date to which those arrears have been calculated and the date on which the next payment under the order fails due;

(b) a certified copy of the maintenance order;

(d) a statement giving such information as the applicant possesses for facilitating the identification of the payer (including, if known to the applicant, the name and address of any employer of the payer, his occupation and the date and place of issue of any passport of the payer) and

(e) if available to the applicant, a photograph of the payer.

Certification of evidence given on provisional order

7.32

Where the court makes a provisional order under section 5 of the Act of 1972[^f00071], the document required by subsection (4) of that section to set out or summarise the evidence given in the proceedings shall be authenticated by a certificate signed by the district judge.

Confirmation of provisional order

7.33

(1) On receipt of a certified copy of a provisional order made in a reciprocating country, together with the document mentioned in section 5(5) of the Act of 1972, the proper officer shall fix a date, time and place for the court to consider whether or not the provisional order should be confirmed, and shall send to the payee under the maintenance order notice of the date, time and place so fixed together with a copy of the provisional order and that document.

(2) The proper officer shall send to the court which made the provisional order a certified copy of any order confirming or refusing to confirm that order.

Taking of evidence for court in reciprocating country

7.34

(1) The High Court shall be the prescribed court for the purposes of taking evidence pursuant to a request by a court in a reciprocating country under section 14 of the Act of 1972[^f00072] where—

(a) the request for evidence relates to a maintenance order made by a superior court in the United Kingdom, and

(b) the witness resides in England and Wales.

(2) The evidence may be taken before a judge or officer of the High Court as the court thinks fit, and the provisions of RSC Order 39 shall apply with the necessary modifications as if the evidence were required to be taken pursuant to an order made under rule I of that Order.

(3) The county court shall be the prescribed court for the purposes of taking evidence pursuant to a request by a court in a reciprocating country pursuant to section 14 of the Act of 1972 where the request for evidence relates to a maintenance order made by a county court which has not been registered in a magistrates'court under the Act of 1958.

(4) Paragraph (2) shall apply to the taking of such evidence as though references therein to the High Court and RSC Order 39 were to the county court and CCR Order 20, rule 13 respectively.

Notification of variation or revocation

7.35

Where the court makes an order (other than a provisional order) varying or revoking a maintenance order a copy of which has been sent to a reciprocating country in pursuance of section 2 of the Act of 1972, the proper officer shall send a certified copy of the order to the court in the reciprocating country.

Transmission of documents

7.36

Any document required to be sent to a court in a reciprocating country under section 5(4) or section 14(1) of the Act of 1972 or by rule 7.33(2) or 7.36 shall be sent to the Secretary of State for transmission to that court unless the district judge is satisfied that, in accordance with the law of that country, the document may properly be sent by him direct to that court.

Application of rules 7.30 to 7.36 to Republic of Ireland

7.37

(1) In relation to the Republic of Ireland rules 7.30 to 7.36 shall have effect subject to the provisions of this rule.

(2) The following paragraphs shall be added to rule 7.31—

(f) a statement as to whether or not the payer appeared in the proceedings in which the maintenance order was made and, if he did not, the original or a copy certified by the applicant or his solicitor to be a true copy of a document which establishes that notice of the institution of the proceedings was served on the payer; (g) a document which establishes that notice of the order was sent to the payer; and (h) if the payer received legal aid in the proceedings in which the order was made, a copy certified by the applicant or his solicitor to be a true copy of the legal aid certificate.

(3) For rule 7.32 there shall be substituted the following rule—

(7.32) (1) Where an application is made to the court for the variation or revocation of an order to which section 5 of the Act of 1972 applies, the certified copy of the application and the documents required by subsection (2) of that section to set out or summarise the evidence in support of the application shall be authenticated by a certificate signed by the district judge.

(4) Rule 7.33 shall not apply.

(5) For rule 7.35 there shall be substituted the following rule—

(7.35) Where the High Court makes an order varying or revoking a maintenance order to which section 5 of the Act of 1972 applies, the proper officer shall send a certified copy of the order and a statement as to the service on the payer of the documents mentioned in subsection (2) of that section to the court in the Republic of Ireland by which the maintenance order is being enforced.

(6) Rule 7.36 shall not apply.

Application of rules 7.30 to 7.36 to the Hague Convention countries

7.38

(1) In relation to the Hague Convention countries, rules 7.30, 7.31, 7.34, 7.35 and 7.36 shall have effect subject to the provisions of this rule, but rules 7.32 and 7.33 shall not apply.

(2) A reference in rules 7.31 and 7.34 to a reciprocating country shall be construed as a reference to a Hague Convention country.

(3) The following words shall be inserted after paragraph (a)(ii) of rule 7.31—

and (iii) whether the time for appealing against the order has expired and whether an appeal is pending;

(4) The following paragraphs shall be inserted after paragraph (e) of rule 7.31—

(f) a statement as to whether or not the payer appeared in the proceedings in which the maintenance order was made, and, if he did not, the original or a copy certified by the applicant or his solicitor to be a true copy of a document which establishes that notice of the institution of proceedings, including notice of the substance of the claim, was served on the payer; (g) a document which establishes that notice of the order was sent to the payer; (h) a written statement as to whether or not the payee received legal aid in the proceedings in which the order was made, or in connection with the application under section 2 of the Act of 1972 and, if he did, a copy certified by the applicant or his solicitor to be a true copy of the legal aid certificate.

(5) In relation to the Hague Convention countries the following rules shall apply in place of rules 7.35 and 7.36—

(7.35) (1) Where the court makes an order varying or revoking a maintenance order to which section 5 of the Act of 1972, as modified, applies, and the time for appealing has expired without an appeal having been entered, the proper officer shall send to the Secretary of State such documents as are required by subsection (7) of that section, as it applies to Hague Convention countries, including a certificate signed by the district judge that the order of variation or revocation is enforcable and that it is no longer subject to the ordinary forms of review. (2) Where either party enters an appeal against the order of variation or revocation he shall, at the same time, inform the proper officer thereof by a notice in writing. (7.36) Any document required to be sent to a court in a Hague Convention country shall be sent to the Secretary of State for transmission to the court.

PART VIII — APPEALS

Appeals from district judges

8.1

(1) Except where paragraph (2) applies, any party may appeal from an order or decision made or given by the district judge in family proceedings in a county court to a judge on notice; and in such a case—

(a) CCR Order 13, rule 1(10) (which enables the judge to vary or rescind an order made by the district judge in the course of proceedings), and

(b) CCR Order 37, rule 6 (which gives a right of appeal to the judge from a judgment or final decision of the district Judge),

shall not apply to the order or decision.

(2) Any order or decision granting or varying an order (or refusing to do so)—

(a) on an application for ancillary relief, or

(b) in proceedings to which rules 3.1, 3.2, 3.3, 3.6 or 3.8 apply,

shall be treated as a final order for the purposes of CCR Order 37, rule 6.

(3) On hearing an appeal to which paragraph (2) above applies, the judge may exercise his own discretion in substitution for that of the district judge.

(4) Unless the court otherwise orders, any notice under this rule must be issued within 14 days of the order or decision appealed against and served not less than 14 days before the day fixed for the hearing of the appeal.

(5) Appeals under this rule shall be heard in chambers unless the judge otherwise directs.

(6) Unless the court otherwise orders, an appeal under this rule shall not operate as a stay of proceedings on the order or decision appealed against.

Appeals under Domestic Proceedings and Magistrates' Courts Act 1978)

8.2

(1) Subject to paragraph (9) below, every appeal to the High Court under the Domestic Proceedings and Magistrates' Courts Act 1978 shall be heard by a Divisional Court of the Family Division and shall be entered by lodging three copies of the notice of motion in the principal registry.

(2) The notice must be served, and the appeal entered, within 6 weeks after the date of the order appealed against.

(3) Notice of the motion may be served in accordance with RSC Order 65, rule 5.

(4) On entering the appeal, or as soon as practicable thereafter, the appellant shall, unless otherwise directed, lodge in the principal registry—

(a) three certified copies of the summons and of the order appealed against, and of any order staying its execution,

(b) three copies of the clerk’s notes of the evidence,

(d) a certificate that notice of the motion has been duly served on the clerk and on every party affected by the appeal, and

(e) where the notice of the motion includes an application to extend the time for bringing the appeal, a certificate (and a copy thereof) by the appellant’s solicitor, or the appellant if he is acting in person, setting out the reasons for the delay and the relevant dates.

(5) If the clerk’s notes of the evidence are not produced, the court may hear and determine the appeal on any other evidence or statement of what occurred in the proceedings before the magistrates' court as appears to the court to be sufficient.

(6) The court shall not be bound to allow the appeal on the ground merely of misdirection or improper reception or rejection of evidence unless, in the opinion of the court, substantial wrong or miscarriage of justice has been thereby occasioned.

(7) A district judge may dismiss an appeal to which this rule applies for want of prosecution or, with the consent of the parties, may dismiss the appeal or give leave for it to be withdrawn, and may deal with any question of costs arising out of the dismissal or withdrawal.

(8) Any interlocutory application in connection with or for the purpose of any appeal to which this rule applies may be heard and disposed of before a single judge.

(9) Where an appeal to which this rule applies relates only to the amount of any periodical or lump sum payment ordered to be made, it shall, unless the President otherwise directs, be heard and determined by a single judge, and in that case—

(a) for the references in paragraphs (1) and (4)(a), (b) and (c) to three copies of the documents therein mentioned there shall be substituted references to one copy;

(b) the parties may agree in writing or the President may direct that the appeal be heard and determined at a divorce town.

PART IX — DISABILITY

Interpretation and application of Part IX

9.1

(1) In this Part—

“patient” means a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983[^f00074], is incapable of managing and administering his property and affairs;

“person under disability” means a person who is a minor or a patient;

“Part VII” means Part VII of the Mental Health Act 1983.

(2) So far as they relate to minors, the provisions of this Part of these rules shall not apply to proceedings which are specified proceedings within the meaning of section 41(6) of the Children Act 1989[^f00075] and, with respect to proceedings which are dealt with together with specified proceedings, this Part shall have effect subject to the said section 41 and Part IV of these rules.

Person under disability must sue by next friend etc.

9.2

(1) A person under disability may begin and prosecute any family proceedings by his next friend and may defend any such proceedings by his guardian ad litem and, except as otherwise provided by this rule, it shall not be necessary for a guardian ad litem to be appointed by the court.

(2) No person’s name shall be used in any proceedings as next friend of a person under disability unless he is the Official Solicitor or the documents mentioned in paragraph (7) have been filed.

(3) Where a person is authorised under Part VII to conduct legal proceedings in the name of a patient or on his behalf, that person shall, subject to paragraph (4), be entitled to be next friend or guardian ad litem of the patient in any family proceedings to which his authority extends.

(4) Where a person entitled to defend any family proceedings is a patient and there is no person authorised under Part VII to defend the proceedings in his name or on his behalf, then—

(a) the Official Solicitor shall, if he consents, be the patient’s guardian ad litem, but at any stage of the proceedings an applicaton may be made on not less than four days' notice to the Official Solicitor, for the appointment of some other person as guardian;

(b) in any other case, an application may be made on behalf of the patient for the appointment of a guardian ad litem;

and there shall be filed in support of any application under this paragraph the documents mentioned in paragraph (7).

(5) Where a petition, answer, originating application or originating summons has been served on a person whom there is reasonable ground for believing to be a person under disability and no notice of intention to defend has been given, or answer or affidavit in answer filed, on his behalf, the party at whose instance the document was served shall, before taking any further steps in the proceedings, apply to a district judge for directions as to whether a guardian ad litem should be appointed to act for that person in the cause, and on any such application the district judge may, if he considers it necessary in order to protect the interests of the person served, order that some proper person be appointed his guardian ad litem.

(6) No notice of intention to defend shall be given, or answer or affidavit in answer filed, by or on behalf of a person under disability unless the person giving the notice or filing the answer or affidavit—

(a) is the Official Solicitor or, in a case to which paragraph (4) applies, is the Official Solicitor or has been appointed by the court to be guardian ad litem; or

(b) in any other case, has filed the documents mentioned in paragraph (7).

(7) The documents referred to in paragraphs (2), (4) and (6) are—

(a) a written consent to act by the proposed next friend or guardian ad litem;

(b) where the person under disability is a patient and the proposed next friend or guardian ad litem is authorised under Part VII to conduct the proceedings in his name or on his behalf, an office copy, sealed with the seal of the Court of Protection, of the order or other authorisation made or given under Part VII; and

(c) except where the proposed next friend or guardian ad litem is authorised as mentioned in sub-paragraph (b), a certificate by the solicitor acting for the person under disability—

(i) that he knows or believes that the person to whom the certificate relates is a minor or patient, stating (in the case of a patient) the grounds of his knowledge or belief and, where the person under disability is a patient, that there is no person authorised as aforesaid, and

(ii) that the person named in the certificate as next friend or guardian ad litem has no interest in the cause or matter in question adverse to that of the person under disability and that he is a proper person to be next friend or guardian.

Service on person under disability

9.3

(1) Where a document to which rule 2.9 applies is required to be served on a person under disability within the meaning of the last foregoing rule, it shall be served—

(a) in the case of a minor who is not also a patient, on his father or guardian or, if he has no father or guardian, on the person with whom he resides or in whose care he is;

(b) in the case of a patient—

(i) on the person (if any) who is authorised under Part VII to conduct in the name of the patient or on his behalf the proceedings in connection with which the document is to be served, or

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The Family Proceedings Rules 1991

Expert evidence—examination of child

4.18

Amendment

4.19

Oral evidence

4.20

Hearing

4.21

Appeals

4.22

Confidentiality of documents

4.23

Notification of consent

4.24

Secure accommodation—evidence

4.25

Investigation under section 37

4.26

Direction to local education authority to apply for education supervision order

4.27

Transitional provision

4.28

PART V — WARDSHIP

Application to make a minor a ward of court

5.1

Enforcement of order by tipstaff

5.2

Where minor ceases to be a ward of court

5.3

Adoption of minor who is a ward of court

5.4

PART VI — CHILD ABDUCTION AND CUSTODY ACT 1985

Interpretation

6.1

Mode of application

6.2

Contents of originating summons: general provisions

6.3

Contents of originating summons: particular provisions

6.4

Defendants

6.5

Acknowledgement of service

6.6

Evidence

6.7

Hearing

6.8

Dispensing with service

6.9

Adjournment of summons

6.10

Stay of proceedings

6.11

Transfer of proceedings

6.12

Interim directions

6.13

Obtaining authenticated copies of decisions

6.14

Revocation and variation of registered decisions

6.15

Orders for disclosure of information

6.16

PART VII — ENFORCEMENT OF ORDERS

Chapter 1. — General

Enforcement of order for payment of money, etc

7.1

Committal and injunction

7.2

Transfer of county court order to High Court

7.3

Chapter 2. — Judgement summonses

General provisions

7.4

Special provisions as to judgement summonses in the High Court

7.5

Special provisions as to judgement summonses in divorce county courts

7.6