The Family Procedure Rules 2010

• (9) After rule 34.25 insert—

(34) (1) A notice to a payer of the registration of an order in the family court in accordance with section 6(3) of the 1972 Act must be in the form referred to in a practice direction. (Section 6(8) of the 1972 Act requires notice of registration to be given to the payer.) (2) If the court sets aside the registration of a maintenance order following an appeal under section 6(9) of the 1972 Act, the court officer must send written notice of the decision to the Lord Chancellor. (3) A notice to a payee that the court officer has refused to register an order must be in the form referred to in a practice direction. (Section 6(11) of the 1972 Act requires notice of refusal of registration to be given to the payee.) (4) Where, under any provision of Part 1 of the 1972 Act, a court officer serves a notice on a payer who resides in a Hague Convention Country, the court officer must send to the Lord Chancellor a certificate of service.

Application of Section 1 of this Chapter to the United States of America

34

• (1) In relation to the United States of America, Section 1 of this Chapter has effect as modified by this rule.

• (2) A reference in this rule and in any rule which has effect in relation to the United States of America by virtue of this rule to—

• (a) the 1972 Act is a reference to the 1972 Act as modified by Schedule 1 to the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 ; and

• (b) a section under the 1972 Act is a reference to the section so numbered in the 1972 Act as so modified.

• (3) A reference to a reciprocating country in rule 34.12(1) and Section 1 of this Chapter is a reference to the United States of America.

• (4) Rules 34.15 (certification of evidence given on provisional orders), 34.16 (confirmation of provisional orders), 34.19 (notification of confirmation , variation or revocation of a maintenance order made by the family court) and 34.21 (request for the taking of evidence in a reciprocating country) do not apply.

• (5) For rule 34.17 (consideration of revocation of a provisional order made by the family court) substitute—

(34) (1) This rule applies where— (a) an application has been made to the family court by a payee for the variation or revocation of an order to which section 5 of the 1972 Act applies; and (b) the payer resides in the United States of America. (2) The court officer must serve on the payee by post a copy of any representations or evidence adduced by or on behalf of the payer. (...)

• (6) For rule 34.18 (notification of variation or revocation), substitute—

(34) If the High Court or the family court makes an order varying or revoking a maintenance order to which section 5 of the 1972 Act applies, the court officer will send to the Lord Chancellor the documents required by section 5(7) of that Act.

• (7) For 34.23(2)(method of payment under registered orders) substitute—

(2) Where the court orders payment to be made to the court, the court officer must send the payments by post to the payee under the order.

• (8) For rule 34.25 (notification of registration and cancellation) substitute—

(34) The court officer must send written notice to— (a) the Lord Chancellor, on the due registration of an order under section 10(4) of the 1972 Act; or (b) the payer under the order, on— (i) the registration of an order under section 10(4) of the 1972 Act; or (ii) the cancellation of the registration of an order under section 10(1) of that Act.

SECTION3 — Proceedings in a Hague Convention Country or in the United States of America

Notification of proceedings in a Hague Convention Country or in the United States of America

34.28ZA

Practice Direction 34E applies where the court officer receives from the Lord Chancellor notice of the institution of proceedings, including notice of the substance of a claim, in a Hague Convention Country or in the United States of America in relation to the making, variation or revocation of a maintenance order.

SECTION4 — Reciprocal enforcement of claims for the recovery of maintenance

Interpretation

34.28ZB

In this Section—

• “convention country” means a country or territory specified in an Order in Council made under section 25 of the 1972 Act; andan expression defined in the 1972 Act has the meaning given to it in that Act.

Dismissal of an application under section 27A of the 1972 Act or application for variation

34.28ZC

• (1) Where the family court dismisses an application under—

• (a) section 27A of the 1972 Act (application for recovery of maintenance); or

• (b) an application by a person in a convention country for the variation of a registered order,

the court officer will send a written notice of the court’s decision to the Lord Chancellor.

• (2) The notice will include a statement of the court’s reasons for its decision.

Application for recovery of maintenance in England and Wales: section 27B of the 1972 Act

34.28ZD

• (1) Where the family court receives an application for the recovery of maintenance sent from the Lord Chancellor under section 27B of the 1972 Act, the court will—

• (a) fix the date, time and place for a hearing or directions appointment, allowing sufficient time for service under this rule to be effected at least 21 days before the date fixed; and

• (b) serve copies of the application and any accompanying documents, together with a notice stating the date, time and place so fixed, on the respondent.

• (2) Within 14 days of service under this rule, the respondent must file an answer to the application in the form referred to in Practice Direction 5A.

Application under section 26(1) or (2) of the 1972 Act and certificate under section 26(3A) of the 1972 Act: registration

34.28ZE

Where—

• (a) an application under section 26(1) or (2) of the 1972 Act; or

• (b) a certificate under section 26(3A) of the 1972 Act,

is required to be registered in the family court by virtue of the Recovery of Maintenance (United States of America) Order 2007, the court officer will enter a minute or memorandum of the application or certificate in the register.

Registration of an order: sections 27C(7) and 32(3) and (6) of the 1972 Act

34.28ZF

• (1) Where the family court makes an order which is required under section 27C(7) of the 1972 Act to be registered, the court officer will enter a minute or memorandum of the order in the register.

• (2) Where a court officer receives under section 32(3) of the 1972 Act a certified copy of an order, the court officer will register the order by means of a minute or memorandum in the register.

• (3) Every minute or memorandum entered under paragraph (1) or (2) will specify the section and subsection of the 1972 Act under which the order in question is registered.

• (4) Where a court officer registers an order as required by section 27C(7) or 32(3) of the 1972 Act, the court officer will send written notice to the Lord Chancellor that the order has been registered.

• (5) Where a court officer is required by section 32(6) of the 1972 Act to give notice of the registration of an order, the court officer will do this by sending written notice to the officer specified in that subsection that the order has been registered.

Payments made to the family court

34.28ZG

• (1) Where payments are made to the family court by virtue of section 27C or 34A of the 1972 Act, the court officer will send those payments by post to such person or authority as the Lord Chancellor may from time to time direct.

• (2) Subject to paragraph (3), if it appears to a court officer that any sums payable under a registered order are in arrears, the officer may proceed in the officer’s own name for the recovery of those sums.

• (3) Where it appears to the officer that sums payable under the order are in arrears to an amount equal—

• (a) in the case of payments to be made monthly or less frequently, to twice the sum payable periodically; or

• (b) in any other case, to four times the sum payable periodically,

the officer will proceed in the officer’s own name for the recovery of those sums, unless it appears to the officer that it is unreasonable in the circumstances to do so.

Method of payment

34.28ZH

• (1) This rule applies where the family court exercises its duties or powers under section 27C or 34A of the 1972 Act.

• (2) Where the court orders that payments under the order are to be made by a particular means—

• (a) the court will record on the copy of the order the means of payment that the court has ordered; and

• (b) the court officer will, as soon as practicable, notify, in writing, the person liable to make the payments under the order how payments are to be made.

• (3) Paragraph (4) applies where the court orders that payments be made to the court by a method of payment falling within section 1(5) of the Maintenance Enforcement Act 1991.

• (4) The court officer will notify the person liable to make the payments under the order of sufficient details of the account into which the payments should be made to enable payments to be made into that account.

Application under section 34 of the 1972 Act: variation or revocation

34.28ZI

• (1) This rule applies in relation to an application under section 34 of the 1972 Act for the variation or revocation of a registered order.

• (2) An application which is made directly to the registering court must be filed in the form referred to in Practice Direction 5A.

• (3) Where the court receives an application, either filed in accordance with paragraph (2) or sent from the Lord Chancellor under section 34(3) of the 1972 Act—

• (a) the court will set the date, time and place for a hearing or directions appointment; and

• (b) the court officer will notify the applicant of the date, time and place.

Application under section 35 of the 1972 Act: variation or revocation

34.28ZJ

• (1) This rule applies in relation to an application under section 35 of the 1972 Act for the variation or revocation of a registered order.

• (2) Notice under section 35(3)(b) of the 1972 Act of the time and place appointed for the hearing of the application will be in the form specified in Practice Direction 34D.

• (3) The court officer will send the notice by post to the Lord Chancellor for onward transmission to the appropriate authority in the convention country in which the respondent is residing.

• (4) The time appointed for the hearing of the application will not be less than six weeks later than the date on which the notice is sent to the Lord Chancellor.

Request under section 38(1) of the 1972 Act to the family court

34.28ZK

• (1) This rule applies where the family court receives from the Lord Chancellor a request under section 38(1) of the 1972 Act (taking evidence at the request of a court in a convention country) to take the evidence of any person.

• (2) Subject to paragraph (3)—

• (a) the evidence will be taken in the same manner as if the person concerned were a witness in family proceedings;

• (b) any oral evidence so taken will be put into writing and read to the person who gave it, who must sign the document; and

• (c) the judge who takes any such evidence of any person will certify at the foot of the document setting out the evidence of, or produced in evidence by, that person that such evidence was taken, or document received in evidence, as the case may be, by that judge.

• (3) Where the request referred to in section 38(2) of the 1972 Act includes a request that the evidence be taken in a particular manner, the court by which the evidence is taken will, so far as circumstances permit, comply with that request.

Request under section 38(1) of the 1972 Act to the officer of the court

34.28ZL

• (1) This rule applies where an officer of the court receives from the Lord Chancellor a request under section 38(1) of the 1972 Act to take the evidence of any person.

• (2) Subject to paragraph (3)—

• (a) the person whose evidence is to be taken will be examined on oath by or before a justices’ legal adviser or any other court officer determined by the Lord Chancellor;

• (b) any oral evidence will be put into writing and read to the person who gave it, who must sign the document; and

• (c) the justices’ legal adviser or other officer will certify at the foot of the document setting out the evidence of, or produced by, that person, that such evidence was taken, or document received in evidence, as the case may be, by that justices’ legal adviser or other officer.

• (3) Where the request referred to in section 38(1) of the 1972 Act includes a request that the evidence be taken in a particular manner, the justices’ legal adviser or other officer by whom the evidence is taken will, so far as circumstances permit, comply with that request.

• (4) For the purposes of this rule, the justices’ legal adviser or other officer has the same power to administer oaths as a single justice of the peace.

Onward transmission of documents

34.28ZM

Any document mentioned in rule 34.28ZK(2)(c) or rule 34.28ZL(2)(c) will be sent to the Lord Chancellor for onward transmission to the appropriate authority in the convention country in which the request referred to in section 38(1) of the 1972 Act originated.

CHAPTER 3 — ENFORCEMENT OF MAINTENANCE ORDERS UNDER THE 2007 HAGUE CONVENTION

Application of this Chapter

34.28A

• (1) In this Chapter—

• (a) references to a maintenance order include—

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ii) a maintenance decision to which Chapter V of the 2007 Hague Convention applies by virtue of Article 19(1) of that Convention;

• (iii) a maintenance arrangement (as defined in Article 3(e) of the 2007 Hague Convention) which is to be recognised and enforceable in the same way as a maintenance decision by virtue of Article 30 of that Convention;

• (b) references to the Hague Protocol are to the Protocol on the Law Applicable to Maintenance Obligations done at The Hague on 23 November 2007 ;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(... )

SECTION 1 — Registration and Enforcement in a Magistrates' Court of Maintenance Orders made in a State bound by the 2007 Hague Convention

Interpretation

34

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application under Article 30 of the Maintenance Regulation or under Article 23 of the 2007 Hague Convention for a declaration of enforceability

34.29A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Registration of maintenance orders

34

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) This rule and Practice Direction 34E apply where the family court receives—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (e) an application under Article 23 of the 2007 Hague Convention for registration of a maintenance order made in a State bound by that Convention ....

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) Except where Practice Direction 34E provides otherwise, the court must register the order unless—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) in the case of an application under Article 23(2) or (3) of the 2007 Hague Convention, Article 22(a) of that Convention applies.

• (7) If the court ... refuses to register an order to which this rule relates the court officer must notify the applicant.

• (8) If the court ... registers an order the court officer must send written notice of that fact to—

• (a) the Lord Chancellor;

• (b) the payer; and

• (c) the applicant.

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeal from a decision relating to registration

34

• (1) This rule applies to an appeal under—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (e) Article 23(5) of the 2007 Hague Convention.

• (2) The appeal must be to the family court.

(Practice Direction 34E makes provision in relation to such cases.)

Payment of sums due under a registered order

34

• (1) Where an order is registered in accordance with Article 23 of the 2007 Hague Convention the court may order that payment of sums due under the order be made to the court, at such time and place as directed.

• (2) Where the court orders payments to be made to the court ..., whether in accordance with paragraph (1) or otherwise, the court officer must send the payments by post either—

• (a) to the court which made the order; or

• (b) to such other person or authority as that court, or the Lord Chancellor, directs.

(Practice Direction 34A contains further provisions relating to the payment of sums due under registered orders.)

Enforcement of payments under registered orders

34

• (1) This rule applies where a court has ordered periodical payments under a registered maintenance order to be made to the the family court.

• (2) The court officer must take reasonable steps to notify the payee of the means of enforcement available.

• (3) Paragraph (4) applies where periodical payments due under a registered order are in arrears.

• (4) The court officer, on that officer's own initiative—

• (a) may; or

• (b) if the sums due are more than 4 weeks in arrears, must,

proceed in that officer's own name for the recovery of the sums due unless of the view that it is unreasonable to do so.

Variation and revocation of registered orders

34

• (1) This rule applies where the court officer for a registering court receives notice that a registered maintenance order has been varied or revoked by a competent court in a State bound by the 2007 Hague Convention.

• (2) The court officer for the registering court must—

• (a) register the order of variation or revocation; and

• (b) send notice of the registration by post to the payer and payee under the order.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Registered order: payer residing in an area covered by a different Maintenance Enforcement Business Centre

34

Practice Direction 34E makes provision for cases where a court officer in the Maintenance Enforcement Business Centre for the Designated Family Judge area where an order is registered considers that the payer is residing in a Designated Family Judge area covered by a different Maintenance Enforcement Business Centre.

(For the way in which information will be provided to enable Maintenance Enforcement Business Centres to be identified, see Practice Direction 34E.)

Cancellation of registered orders

34

• (1) Where the court officer for the registering court—

• (a) has no reason to send papers to another Maintenance Enforcement Business Centre under Practice Direction 34E; and

• (b) considers that the payer under the registered order is not residing within the area covered by the Maintenance Enforcement Business Centre for the Designated Family Judge area where the order is registered and has no assets in England and Wales,

the court officer must cancel the registration.

• (2) The court officer must—

• (a) give notice of cancellation to the payee; and

• (b) send to the Lord Chancellor—

• (i) the information and documents relating to the registration;

• (ii) a certificate of arrears, if applicable, signed by the court officer;

• (iii) a statement giving such information as the court officer possesses as to the whereabouts of the payer and the nature and location of the payer’s assets; and

• (iv) any other relevant documents which the court officer has relating to the case.

(Practice Direction 34E makes further provision on this matter.)

Directions as to stays, documents and translations

34.36A

At any stage in proceedings for registration of a maintenance order under this Section of this Chapter, the court may give directions about the conduct of the proceedings, including—

• (a) staying of proceedings in accordance with—

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (v) Article 30(6) of the 2007 Hague Convention;

• (b) the provision of documents in accordance with—

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (v) Article 25 or 30 of the 2007 Hague Convention;

• (c) the provision of translations in accordance with—

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (v) in relation to an application under this Section relating to the 2007 Hague Convention, without prejudice to Article 44 of that Convention.

International Maintenance Obligations; Communication with the Central Authority for England and Wales

34.36B

• (1) Where the Lord Chancellor requests information or a document from the court officer for the relevant court for the purposes of ...Article 12 or 25(2) of the 2007 Hague Convention, the court officer shall provide the requested information or document to the Lord Chancellor forthwith.

• (2) In this rule, “relevant court” means the court at which an application under ... Article 10 of the 2007 Hague Convention has been filed.

[The Lord Chancellor is the Central Authority for the 2007 Hague Convention...]

The Maintenance Regulation: applications for enforcement or for refusal or suspension of enforcement

34.36C

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SECTION 2 — Reciprocal enforcement in a Contracting State ... of Orders of a court in England and Wales

Application in a magistrates' court for a maintenance order, or revocation of a maintenance order, to which the 1982 Act, the Judgments Regulations or the Lugano Convention applies

34

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Admissibility of Documents

34

• (1) This rule applies to a document, referred to in paragraph (2) and authenticated in accordance with paragraph (3), which comprises, records or summarises evidence given in, or information relating to, proceedings in a court in another part of the UK or another Contracting State to the 2007 Hague Convention, and any reference in this rule to “the court”, without more, is a reference to that court.

• (2) The documents referred to at paragraph (1) are documents which purport to—

• (a) set out or summarise evidence given to the court;

• (b) have been received in evidence to the court;

• (c) set out or summarise evidence taken in the court for the purpose of proceedings in a court in England and Wales to which ... the 2007 Hague Convention applies; or

• (d) record information relating to payments made under an order of the court.

• (3) A document to which paragraph (1) applies shall, in any proceedings in the family court relating to a maintenance order to which ...the 2007 Hague Convention applies, be admissible as evidence of any fact stated in it to the same extent as oral evidence of that fact is admissible in those proceedings.

• (4) A document to which paragraph (1) applies shall be deemed to be authenticated—

• (a) in relation to the documents listed at paragraph 2(a) or (c), if the document purports to be—

• (i) certified by the judge or official before whom the evidence was given or taken; or

• (ii) the original document recording or summarising the evidence, or a true copy of that document;

• (b) in relation to a document listed at paragraph (2)(b), if the document purports to be certified by a judge or official of the court to be, or to be a true copy of, the document received in evidence; and

• (c) in relation to the document listed at paragraph (2)(d), if the document purports to be certified by a judge or official of the court as a true record of the payments made under the order.

• (5) It shall not be necessary in any proceedings in which evidence is to be received under this rule to prove the signature or official position of the person appearing to have given the certificate referred to in paragraph (4).

• (6) Nothing in this rule shall prejudice the admission in evidence of any document which is admissible in evidence apart from this rule.

• (7) Any request by the family court for the taking or providing of evidence by a court in a State bound by the 2007 Hague Convention for the purposes of proceedings to which that Convention applies, or by a court in another part of the United Kingdom, shall be communicated in writing to the court in question.

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(... )

Enforcement of orders of the family court

34

• (1) A person who wishes to enforce a maintenance order obtained in the family court in a State bound by the 2007 Hague Convention must apply for a certified copy of the order and, where required by Practice Direction 34A, a certificate giving particulars relating to the judgment and proceedings in which it was given.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) An application under this rule must be made in writing to the court officer and must specify—

• (a) the names of the parties to the proceedings;

• (b) the date, or approximate date, of the proceedings in which the maintenance order was made and the nature of those proceedings;

• (c) the State in which the application for recognition or enforcement has been made or is to be made; and

• (d) the postal address of the applicant.

• (4) The court officer must, on receipt of the application, send a copy of the order to the applicant certified in accordance with ... practice direction 34A , together with a copy of any certificate required by that practice direction .

• (5) Paragraph (6) applies where—

• (a) a maintenance order is registered in the family court; and

• (b) a person wishes to obtain a certificate giving details of any payments made or arrears accrued under the order while it has been registered, for the purposes of an application made or to be made in connection with that order in—

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (v) another part of the United Kingdom ; or

• (vi) another State bound by the 2007 Hague Convention ....

• (6) The person wishing to obtain the certificate referred to in paragraph (5) may make a written application to the court officer for the registering court.

• (7) On receipt of an application under paragraph (6) the court officer must send to the applicant a certificate giving the information requested.

(Rule 74.12 (application for certified copy of a judgment) and 74.13 (evidence in support) of the CPR apply in relation to the application for a certified copy of a judgment obtained in the High Court or a county court.)

Enforcement of orders of the High Court or the family court

34.40

• (1) This rule applies where a person wishes to enforce a maintenance order obtained in the High Court or the family court in ... a State bound by the 2007 Hague Convention ....

• (2) Subject to the requirements of Practice Direction 34A, rules 74.12 (application for a certified copy of a judgment) and 74.13 (evidence in support) of the CPR apply in relation to—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) an application for a certified copy of a judgment and a certificate giving particulars relating to the judgment and the proceedings in which it was given.

PART 35 — MEDIATION DIRECTIVE

Scope and Interpretation

35

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Relevant disputes: applications for consent orders in respect of financial remedies

35

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Mediation evidence: disclosure and inspection

35

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Mediation evidence: witnesses and depositions

35

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 36 — TRANSITIONAL ARRANGEMENTS AND PILOT SCHEMES

Transitional provisions

36

Practice Direction 36A shall make provision for the extent to which these rules shall apply to proceedings started before the day on which they come into force.

Pilot schemes

36

Practice directions may modify or disapply any provision of these rules—

• (a) for specified periods; and

• (b) in relation to proceedings in specified courts,

during the operation of pilot schemes for assessing the use of new practices and procedures in connection with proceedings.

Domestic Abuse Act 2021: provision during pilot commencement of Part 3

36.2A

• (1) Practice directions may make provision for proceedings in relation to Part 3 of the Domestic Abuse Act 2021 during any period when, pursuant to regulations made under section 90(7) to (9) of that Act, any provisions of that Part are in force only for a specified purpose, in relation to a specified area or for a specified period.

• (2) The provision made by a practice direction under paragraph (1) may include provision modifying or disapplying any provision of these Rules.

Temporary modifications for coronavirus or other emergency

36.3

Practice Directions may modify or disapply any provision of these rules—

• (a) for specified periods; and

• (b) in relation to proceedings in specified courts,

in order to address issues for the work of the courts arising from the coronavirus (SARS-CoV-2) outbreak or any other public emergency.

PART 37 — APPLICATIONS AND PROCEEDINGS IN RELATION TO CONTEMPT OF COURT

Rule 37.1	Scope
Rule 37.2	Interpretation
Rule 37.3	How to make a contempt application
Rule 37.4	Requirements of a contempt application
Rule 37.5	Service of a contempt application
Rule 37.6	Cases where no application is made
Rule 37.7	Directions for hearing of contempt proceedings
Rule 37.8	Hearings and judgments in contempt proceedings
Rule 37.9	Powers of the court in contempt proceedings
Rule 37.10	Applications to discharge committal orders

Scope

37.1

• (1) This Part sets out the procedure to be followed in proceedings for contempt of court (“contempt proceedings”).

• (2) This Part does not alter the scope and extent of the jurisdiction of courts determining contempt proceedings, whether inherent, statutory or at common law.

• (3) This Part has effect subject to and to the extent that it is consistent with the substantive law of contempt of court.

Interpretation

37.2

In this Part—

• “claimant” means a person making a contempt application;

• “contempt application” means an application to the court for an order determining contempt proceedings;

• “defendant” means the person against whom the application is made;

• “order of committal” means the imposition of a sentence of imprisonment (whether immediate or suspended) for contempt of court;

• “penal notice” means a prominent notice on the front of an order warning that if the person against whom the order is made (and, in the case of a corporate body, a director or officer of that body) disobeys the court’s order, the person (or director or officer) may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.

How to make a contempt application

37.3

• (1) A contempt application made in existing High Court or family court proceedings is made by an application under Part 18 in those proceedings, whether or not the application is made against a party to those proceedings.

• (2) If the application is made in the High Court, it shall be determined by a High Court judge of the Division in which the case is proceeding. If it is made in the family court, it shall be determined by a judge of the family court.

(The Family Court (Composition and Distribution of Business) Rules 2014 make provision for which level of judge may determine a contempt application.)

• (3) A contempt application in relation to alleged interference with the due administration of justice, otherwise than in existing High Court or family court proceedings, is made by an application to the High Court under Part 19.

• (4) Where an application under Part 19 is made under paragraph (3), the rules in Part 19 apply except as modified by this Part and the defendant is not required to acknowledge service of the application.

• (5) Permission to make a contempt application is required where the application is made in relation to—

• (a) interference with the due administration of justice, except in relation to existing High Court or family court proceedings;

• (b) an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement.

• (6) If permission to make the application is needed, the application for permission shall be included in the contempt application, which will proceed to a full hearing only if permission is granted.

• (7) If permission is needed and the application relates to High Court proceedings, the question of permission shall be determined by a single judge of the High Court. If permission is granted the contempt application shall be determined by a single judge or Divisional Court of that Division.

Requirements of a contempt application

37.4

• (1) Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.

• (2) A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—

• (a) the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);

• (b) the date and terms of any order allegedly breached or disobeyed;

• (c) confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;

• (d) if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;

• (e) confirmation that any order allegedly breached or disobeyed included a penal notice;

• (f) the date and terms of any undertaking allegedly breached;

• (g) confirmation of the claimant’s belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;

• (h) a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;

• (i) that the defendant has the right to be legally represented in the contempt proceedings;

• (j) that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;

• (k) that the defendant may be entitled to the services of an interpreter;

• (l) that the defendant is entitled to a reasonable time to prepare for the hearing;

• (m) that the defendant is entitled but not obliged to give written and oral evidence in their defence;

• (n) that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;

• (o) that the court may proceed in the defendant’s absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;

• (p) that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;

• (q) that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;

• (r) that the court’s findings will be provided in writing as soon as practicable after the hearing; and

• (s) that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public.

Service of a contempt application

37.5

• (1) Unless the court directs otherwise in accordance with Part 6 and except as provided in paragraph (2), a contempt application and evidence in support must be served on the defendant personally.

(Rule 6.23A specifies how service is to be effected on a person where there are reasonable grounds to believe that person is residing in a refuge.)

• (2) Where a legal representative for the defendant is on the record in the proceedings in which, or in connection with which, an alleged contempt is committed—

• (a) the contempt application and evidence in support may be served on the representative for the defendant unless the representative objects in writing within seven days of receipt of the application and evidence in support;

• (b) if the representative does not object in writing, they must at once provide to the defendant a copy of the contempt application and the evidence supporting it and take all reasonable steps to ensure the defendant understands them;

• (c) if the representative objects in writing, the issue of service shall be referred to a judge of the court dealing with the contempt application; and the judge shall consider written representations from the parties and determine the issue on the papers, without (unless the judge directs otherwise) an oral hearing.

Cases where no application is made

37.6

• (1) If the court considers that a contempt of court (including a contempt in the face of the court) may have been committed, the court on its own initiative shall consider whether to proceed against the defendant in contempt proceedings.

• (2) Where the court does so, any other party in the proceedings may be required by the court to give such assistance to the court as is proportionate and reasonable, having regard to the resources available to that party.

• (3) If the court proceeds of its own initiative, it shall issue a summons to the defendant which includes the matters set out in rule 37.4(2)(a)-(s) (in so far as applicable) and requires the defendant to attend court for directions to be given.

• (4) A summons issued under this rule shall be served on the defendant personally and on any other party, unless the court directs otherwise. If rule 37.5(2) applies, the procedure there set out shall be followed unless the court directs otherwise.

Directions for hearing of contempt proceedings

37.7

• (1) The court shall give such directions as it thinks fit for the hearing and determination of contempt proceedings, including directions for the attendance of witnesses and oral evidence, as it considers appropriate.

• (2) The court may issue a bench warrant to secure the attendance of the defendant at a directions hearing or at the substantive hearing.

• (3) The court may not give any direction compelling the defendant to give evidence either orally or in writing.

Hearings and judgments in contempt proceedings

37.8

• (1) All hearings of contempt proceedings shall, irrespective of the parties’ consent, be listed and heard in public unless the court otherwise directs, applying the provisions of paragraph (4).

• (2) In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected.

• (3) The court shall .take reasonable steps to ensure that all hearings are of an open and public character, save when a hearing is held in private.

• (4) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice—

• (a) publicity would defeat the object of the hearing;

• (b) it involves matters relating to national security;

• (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

• (d) a private hearing is necessary to protect the interests of any child or protected party;

• (e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

• (f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

• (g) the court for any other reason considers this to be necessary to secure the proper administration of justice.

• (5) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.

• (6) Unless and to the extent that the court otherwise directs, where the court acts under paragraph (4) or (5), a copy of the court’s order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.

• (7) Advocates and the judge shall appear robed in all hearings of contempt proceedings, whether or not the court sits in public.

• (8) Before deciding to sit in private for all or part of the hearing, the court shall notify the national print and broadcast media, via the Press Association.

• (9) The court shall consider any submissions from the parties or media organisations before deciding whether and if so to what extent the hearing should be in private.

• (10) If the court decides to sit in private it shall, before doing so, sit in public to give a reasoned public judgment setting out why it is doing so.

• (11) At the conclusion of the hearing, whether or not held in private, the court shall sit in public to give a reasoned public judgment stating its findings and any punishment.

• (12) The court shall inform the defendant of the right to appeal without permission, the time limit for appealing and the court before which any appeal must be brought.

• (13) The court shall be responsible for ensuring that judgments in contempt proceedings are transcribed and published on the website of the judiciary of England and Wales.

Powers of the court in contempt proceedings

37.9

• (1) If the court finds the defendant in contempt of court, the court may impose a period of imprisonment (an order of committal), a fine, confiscation of assets or other punishment permitted under the law.

• (2) Execution of an order of committal requires issue of a warrant of committal. An order of committal and a warrant of committal have immediate effect unless and to the extent that the court decides to suspend execution of the order or warrant.

• (3) An order or warrant of committal must be personally served on the defendant unless the court directs otherwise.

• (4) To the extent that the substantive law permits, a court may attach a power of arrest to a committal order.

• (5) An order or warrant of committal may not be enforced more than two years after the date it was made unless the court directs otherwise.

Applications to discharge committal orders

37.10

• (1) A defendant against whom a committal order has been made may apply to discharge it.

• (2) Any such application shall be made by an application notice under Part 18 in the contempt proceedings.

• (3) The court hearing such an application shall consider all the circumstances and make such order under the law as it thinks fit.

PART38 — RECOGNITION AND ENFORCEMENT OF PROTECTION MEASURES

CHAPTER1 — SCOPE AND INTERPRETATION OF THIS PART

Scope and interpretation

38.1

• (1) This Part contains rules about the ... recognition and enforcement of incoming protection measures ....

• (2) In this Part—

• ...

• ...

• “Article 11 notice” means the notification required by Article 11 of the Protection Measures Regulation;

• “Article 14 certificate” means a certificate issued under Article 14 of the Protection Measures Regulation;

• ...

• “person causing the risk” has the meaning given to it in the Protection Measures Regulation; and

• “protected person” has the meaning given to it in the Protection Measures Regulation.

CHAPTER 2 — CERTIFICATES FOR OUTGOING PROTECTION MEASURES

Application for an Article 5 certificate

38.2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The court to which an application for an Article 5 certificate must be made

38.3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

When a request for a translation of an Article 5 certificate may be made

38.4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The court to which a request for translation of an Article 5 certificate must be made

38.5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Service requirements under Article 6

38.6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Notification of the certificate under Article 8

38.7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rectification of an Article 5 certificate

38.8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Withdrawal of an Article 5 certificate

38.9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

When an application for an Article 14 certificate may be made

38.10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The court to which an application for an Article 14 certificate must be made

38.11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER3 — INCOMING PROTECTION MEASURES

Application for adjustment under Article 11

38.12

A protected person may apply to the court under Article 11 of the Protection Measures Regulation (as it has effect in the law of England and Wales) to adjust the factual elements of an incoming protection measure.

Notification of the adjustment under Article 11

38.13

• (1) Subject to paragraph (2), the court officer must give Article 11 notice to the person causing the risk by serving it in accordance with Chapter 3 of Part 6 and the rules in that Chapter apply to service of the notice as they apply to any other document to be served by a court officer.

• (2) If the person causing the risk resides outside the United Kingdom, the court officer must give Article 11 notice by sending it by registered letter with acknowledgment of receipt or other confirmation of delivery or equivalent to the last known place of residence of that person.

Application for refusal of recognition or enforcement under Article 13

38.14

An application by a person causing the risk for refusal of recognition or enforcement under Article 13 of the Protection Measures Regulation (as it has effect in the law of England and Wales) must be made to—

• (a) the family court if—

• (i) there are proceedings relating to the same protection measure before the family court; or

• (ii) proceedings relating to the same protection measure were dealt with by the family court;

• (b) the High Court if—

• (i) there are proceedings relating to the same protection measure before the High Court; or

• (ii) proceedings relating to the same protection measure were dealt with by the High Court; or

• (c) the family court, unless, applying rule 5.4, the application should be made to the High Court.

Application under Article 14(2)

38.15

• (1) This rule applies where an Article 14 certificate has been issued in a Member State of the European Union other than ... Denmark.

• (2) A protected person or person causing the risk may apply to the court to stay, suspend or withdraw the effects of recognition or, where applicable, the enforcement of the protection measure.

• (3) An application under this rule must include a copy of the Article 14 certificate issued in the ... Member State.

• (4) On an application under this rule, the court must make such orders or give such directions as may be necessary to give effect to the Article 14 certificate.

PART39 — ATTACHMENT OF EARNINGS

CHAPTERI — GENERAL

Application of this Part

39.1

• (1) Chapter 2 of this Part applies where an attachment of earnings order is sought in the family court to secure payments under a family court or High Court maintenance order whether or not arrears have accrued.

• (2) Chapter 3 of this Part applies where an attachment of earnings order is sought in the High Court to secure payments under a High Court maintenance order whether or not arrears have accrued.

(Section 1 of the 1971 Act makes provision for when the family court or the High Court may make an attachment of earnings order.)

Interpretation of this Part

39.2

In this Part—

• “the 1971 Act” means the Attachment of Earnings Act 1971 and unless the context otherwise requires or this Part otherwise provides, expressions used in that Act, including the term “maintenance order”, have the same meaning as in that Act;

• “creditor” means the person who is entitled to enforce a maintenance order; and

• “debtor” means the person against whom a maintenance order was made.

Search of court records

39.3

If requested to do so by any person having a maintenance order against a debtor, the court officer must—

• (a) cause a search to be made in the court records to determine whether there is an attachment of earnings order in force in relation to that debtor; and

• (b) issue a certificate of the result of the search.

CHAPTER2 — SECURING PAYMENTS UNDER A MAINTENANCE ORDER IN THE FAMILY COURT – ATTACHMENT OF EARNINGS ORDER

Where to apply

39.4

An application for an attachment of earnings order to which this Chapter applies must be sent to the family court.

Application for an attachment of earnings order

39.5

• (1) Where an application is made for an attachment of earnings order on the making of the maintenance order or of an order varying the maintenance order, the remainder of this rule and rule 39.6 do not apply.

• (2) A creditor who wishes to apply for an attachment of earnings order must file—

• (a) an application in accordance with rule 33.3(1); and

• (b) a copy of the sealed (GL) maintenance order.

• (3) When the documents mentioned in paragraph (2) are filed with the court, the court officer must fix a day for the hearing of the application.

Service and reply

39.6

• (1) Notice of the application and a reply form must be served by the court on the debtor in accordance with Chapter 3 of Part 6.

• (2) The notice of application must include an instruction to the debtor to file the reply form within 8 days after service, and that instruction constitutes a requirement imposed under section 14(4) of the 1971 Act.

• (3) No proceedings may be brought for an alleged offence under section 23(2)(c) or (f) of the 1971 Act in relation to the requirement to reply unless—

• (a) the notice of application and reply form have been served personally on the debtor; or

• (b) the court is satisfied that those documents came to the debtor’s knowledge in sufficient time to comply with the requirement.

• (4) The court officer must send to the creditor a copy of any reply form received from the debtor.

Notice to the debtor’s employer

39.7

• (1) Without prejudice to the power conferred by section 14(1) of the 1971 Act, a court officer may, at any stage of the proceedings, send to any person appearing to be the debtor’s employer a notice requesting that person to give to the court a statement of the debtor’s earnings.

• (2) The statement of the debtor’s earnings must—

• (a) state the debtor’s earnings;

• (b) state the debtor’s anticipated earnings;

• (c) include such particulars as requested in the notice from the court; and

• (d) be given to the court within such period as is specified in the notice.

Attachment of earnings order

39.8

An application for an attachment of earnings order to secure payments under a maintenance order must be heard in private, unless the court directs otherwise.

Failure by debtor

39.9

• (1) If the debtor has failed to comply with rule 39.6(2) or to make payment to the creditor, the court officer may issue an order under section 14(1) of the 1971 Act which must, in addition to meeting the requirements of rule 39.18(1), direct that any payments made after the date of service of the order must be paid to the court and not direct to the creditor.

• (2) Without prejudice to rule 39.19, if the person served with an order referred to in paragraph (1) fails—

• (a) to obey the order;

• (b) to complete and file the form of reply, including the statement of means; or

• (c) make payment,

the court officer must issue a notice to the person to attend a hearing at which the court will consider whether an offence has been committed under section 23(2)(c) of the 1971 Act and whether the person should be imprisoned or fined as a result.

• (3) A notice of a type referred to in paragraph (2) must be served on the debtor personally not less than 5 days before the hearing.

• (4) In this rule, “statement of means” means a statement given under section 14(1) of the 1971 Act.

Enforcement under section 23(1) of the 1971 Act

39.10

• (1) An order under section 23(1) of the 1971 Act for the attendance of the debtor at an adjourned hearing for an attachment of earnings order to secure payments under a maintenance order—

• (a) must be served on the debtor personally not less than 5 days before the day fixed for the adjourned hearing; and

• (b) may direct that any future payments made after the date of service of the order under section 23(1) of the 1971 Act must be paid into the court and not direct to the creditor.

• (2) An application by a debtor for the revocation of an order committing the debtor to prison and (if already in custody) for discharge under section 23(7) of the 1971 Act must—

• (a) be made to court in writing without notice to any other party, stating the reasons for the debtor’s failure to attend the court or refusal to be sworn or to give evidence (as the case may be) and containing an undertaking by the debtor to attend the court or be sworn or to give evidence when required to do so; and

• (b) if the debtor has already been lodged in prison, be attested by the governor of the prison (or any other officer of the prison not below rank of principal officer), and in any other case be made in a witness statement or affidavit,

and before dealing with the application the court may, if it thinks fit, cause notice to be given to the creditor that the application has been made and of a date and time when the creditor may attend and be heard.

Suspended committal order

39.11

• (1) If the debtor fails to attend an adjourned hearing of an application for an attachment of earnings order and a committal order is made, the court making the committal order may direct that its execution be suspended for such period or on such terms or conditions as it may specify.

• (2) Unless the court otherwise directs, the creditor must serve on the debtor personally a copy of any order made under paragraph (1).

• (3) Where a committal order is suspended under paragraph (1) and the debtor fails to attend at the time and place specified in the committal order, a certificate to that effect given by the court officer is sufficient authority for the issue of a warrant of committal.

• (4) If execution of a committal order is suspended under paragraph (1), the debtor may apply for a further suspension.

• (5) The debtor may apply for a further suspension by attending at, or writing to, the court office and explaining why they have been unable to comply with the terms of the original suspension.

• (6) If the debtor applies for a further suspension in accordance with paragraph (5), the court must—

• (a) fix a date for the hearing of the application; and

• (b) give the debtor and creditor at least 3 days’ notice of the hearing.

• (7) The court may suspend execution of the committal order pending the hearing of the application under paragraph (5).

Costs

39.12

• (1) Where costs are allowed to the creditor on an application for an attachment of earnings order, there may be allowed—

• (a) a charge of a legal representative for preparing the application, attending the hearing and, if applicable, for serving the application; and

• (b) the court fee for issuing the application.

• (2) The costs may be fixed and allowed without detailed assessment under CPR Part 47.

Contents and service of the order

39.13

• (1) An attachment of earnings order must contain such of the following information about the debtor as is known to the court—

• (a) the debtor’s full name and address;

• (b) the debtor’s place of work;

• (c) the nature of the debtor’s work and works number, if any.

• (2) That information will be the prescribed particulars for the purposes of section 6(3) of the 1971 Act.

• (3) An attachment of earnings order and any order varying or discharging such an order must be served on the parties and on the person to whom the order is directed.

• (4) Where—

• (a) the order is directed to a corporation; and

• (b) that corporation has requested that the court serve on the corporation documents relating to the debtor or to the class of persons to whom the debtor belongs at a particular address,

service may be effected on the corporation at that address, if the court thinks fit.

• (5) Where an attachment of earnings order is made by the family court to secure payments under a maintenance order made by the High Court, a copy of the attachment of earnings order and of any order discharging or varying it must be sent by the court officer of the family court to the court officer of the High Court.

Application to determine whether particular payments are earnings

39.14

• (1) An application to the court under section 16 of the 1971 Act to determine whether payments to the debtor of a particular class or description are earnings for the purposes of an attachment of earnings order may be made to the court in accordance with Part 18.

• (2) If such an application is made, the court officer must fix a date for the hearing of the application by the court and give notice of that hearing to the persons mentioned in section 16(2)(a), (b) and (c) of the 1971 Act.

Notice that an order has ceased to have effect

39.15

Where an attachment of earnings order made by the family court to secure payments under a maintenance order ceases to have effect under section 8(3) of the 1971 Act and—

• (a) the related maintenance order was made by that court; or

• (b) the related maintenance order was made by the High Court; and—

• (i) the court officer has received notice of the cessation from the court officer of the High Court; or

• (ii) a committal order has been made in the family court for the enforcement of the related maintenance order,

the court officer of the family court must give notice of the cessation to the person to whom the attachment of earnings order was directed.

Variation and discharge by the court of its own initiative

39.16

• (1) The powers conferred by section 9(1) of the 1971 Act may be exercised by the court of its own initiative in the circumstances specified in this rule.

• (2) Where it appears to the court that a person served with an attachment of earnings order does not employ the debtor, the court must discharge the order.

• (3) Where an attachment of earnings order which has lapsed under section 9(4) of the 1971 Act is again directed to a person who appears to the court to employ the debtor, the court may make such consequential variations in the order as it thinks fit.

• (4) Where the court has made an attachment of earnings order and it appears to the court that the related maintenance order has ceased to have effect (whether by virtue of the terms of the maintenance order or under section 28 of the 1973 Act or otherwise), the court may discharge or vary the attachment of earnings order.

• (5) The court may discharge the attachment of earnings order where an attachment of earnings order has been made to secure payments under a maintenance order and—

• (a) the court makes an order for another form of enforcement for the recovery of payments under the maintenance order; or

• (b) there is no further sum payable under the maintenance order.

• (6) Before varying or discharging an attachment of earnings order of its own initiative under any of the paragraphs of this rule, the court must, unless it thinks it unnecessary in the circumstances to do so, give the debtor, and the person on whose application the order was made, an opportunity of being heard on the question of whether the order should be varied or discharged.

• (7) The court officer must give those people mentioned in paragraph (6) notice of the date, time and place fixed for the hearing.

Change of Designated Family Judge area

39.17

If, in the opinion of the family court sitting in a Designated Family Judge area in which an attachment of earnings order has been made, the matter could more conveniently proceed in another Designated Family Judge area (whether by reason of the debtor having become resident in that other Designated Family Judge area or otherwise), the court may order that the matter should proceed in that other area.

Exercise of power to obtain statement of earnings etc.

39.18

• (1) An order under section 14(1) of the 1971 Act must—

• (a) be endorsed with or incorporate a notice warning the person to whom it is directed of the consequences of disobeying the order; and

• (b) be served on that person personally.

• (2) Rule 37.35 applies, with the necessary modifications in relation to any penalty for failure to comply with an order under section 14(1) of the 1971 Act as it applies in relation to a fine under section 31G of the 1984 Act.

Offences

39.19

• (1) Paragraph (2) applies where—

• (a) it is alleged that a person has committed any offence mentioned in section 23(2)(a), (b), (d), (e) or (f) of the 1971 Act in relation to proceedings in, or to an attachment of earnings order made by, the family court; and

• (b) the alleged offender is not being proceeded against summarily.

• (2) Thecourt may issue a notice to the alleged offender to attend a hearing at which the court will consider whether the alleged offence has been committed and whether the alleged offender should be imprisoned or fined as a result.

• (3) The notice must be served on the alleged offender personally not less than 14 days before the hearing.

• (4) Rules 37.36 and 37.37 apply to proceedings for an offence under section 23(2) of the 1971 Act as they apply to proceedings for offences under the County Courts Act 1984.

• (5) Where a person other than a debtor is committed for an offence under section 23(2) of the 1971 Act, rule 37.30 applies to an application by that person to be discharged from custody.

Permission to enforce arrears

39.20

• (1) This rule applies where a creditor applies for an attachment of earnings order to enforce the payment of arrears which became due more than 12 months before the date of the application for an attachment of earnings order.

• (2) Where the creditor requires the permission of the court under—

• (a) section 32 of the 1973 Act;

• (b) section 32(4) of the 1978 Act; or

• (c) paragraph 63 of Schedule 5 to the 2004 Act,

to enforce the payment of such arrears, the permission application must be made in the application for the attachment of earnings order.

• (3) Notice of the application, together with a form of reply in the appropriate form, must be served on the debtor in the manner set out in rule 6.23 and the notice must be served not less than 14 days before the hearing.

CHAPTER3 — SECURING PAYMENTS UNDER A MAINTENANCE ORDER IN THE HIGH COURT – ATTACHMENT OF EARNINGS ORDER

39.21

Where an application is made to the High Court under this Chapter, the rules in Chapter 2 apply with the following modifications—

• (a) for rule 39.4 there is substituted—

(1) Subject to paragraph (2), an application for an attachment of earnings order must be sent to the District Registry of the High Court for the district in which the debtor resides. (2) If the debtor resides outside of England and Wales, or if the debtor’s place of residence is not known to the creditor, an application for an attachment of earnings order must be sent to the District Registry of the High Court for the district in which the proceedings which resulted in the maintenance order being made took place.

• (b) for rule 39.8 there is substituted—

(1) An application for an attachment of earnings order to secure payments under a maintenance order must be heard in private, unless the court directs otherwise. (2) Where an attachment of earnings order made by the High Court designates the court officer of the family court as the collecting officer, that officer must, on receipt of a certified copy of the order from the court officer of the High Court, send to the person to whom the order is directed a notice as to the mode of payment.

• (c) rule 39.13(5) is omitted;

• (d) for rule 39.15 there is substituted—

Where an attachment of earnings order made by the High Court to secure payments under a High Court maintenance order ceases to have effect under section 8(3) of the 1971 Act, the court officer of the High Court must give notice of the cessation to the person to whom the attachment of earnings order was directed.

• (e) for rule 39.17, including the heading to that rule, there is substituted—

(39.17) If, in the opinion of the High Court sitting in a District Registry in which an attachment of earnings order has been made, the matter could more conveniently proceed in another District Registry (whether by reason of the debtor having become resident in the area of that District Registry or otherwise), the court may order that the matter should proceed in that other District Registry.

• (f) in rule 39.19(1)(a), for “family court” there is substituted “High Court”; and

• (g) in rule 39.20(2), sub-paragraph (b) is omitted.

PART40 — CHARGING ORDER, STOP ORDER, STOP NOTICE

CHAPTER1 — GENERAL

Application of this Part

40.1

This Part contains rules which provide for a creditor to enforce a judgment or order by obtaining—

• (a) a charging order (Chapter 2);

• (b) a stop order (Chapter 3); or

• (c) a stop notice (Chapter 4),

over or against the debtor’s interest in an asset.

Interpretation of this Part

40.2

In this Part—

• “the 1979 Act” means the Charging Orders Act 1979;

• “creditor” means the person to whom payment of a sum of money is due under a judgment or order or a person who is entitled to enforce such a judgment or order;

• “debtor” means the person against whom a judgment or other order for payment of a sum of money was given, made or ordered, as the case may be;

• “interim charging order” means an interim charging order made in accordance with rule 40.5; and

• “securities” means securities of any of the kinds specified in section 2(2)(b) of the 1979 Act.

CHAPTER2 — CHARGING ORDERS

Scope of this Chapter

40.3

This Chapter applies to an application by a creditor for a charging order under section 1 of the 1979 Act.

Application for a charging order

40.4

• (1) An application for a charging order may be made without notice.

• (2) An application must be made to the family court or to the High Court, as appropriate and as specified in section 1 of the 1979 Act.

(His Majesty’s Courts and Tribunals Service publishes information to identify the appropriate location of the family court or High Court to which an application for a charging order should be sent.)

• (3) A creditor may apply for a single charging order in respect of more than one judgment or order against the same debtor.

• (4) The application must—

• (a) be in the form and contain the information required by Practice Direction 40A; and

• (b) be verified by a statement of truth.

Interim charging order

40.5

• (1) An application for a charging order will initially be dealt with by the court without a hearing.

• (2) The court may make an interim charging order—

• (a) imposing a charge over the debtor’s interest in the asset to which the application relates; and

• (b) fixing a hearing to consider whether to make a final charging order as provided by rule 40.8.

Service of an interim charging order

40.6