The Family Procedure (Amendment) (No.5) Rules 2012

Made: 10th December 2012

Laid before Parliament: 13th December 2012

Coming into force: 31st January 2013

The Family Procedure Rule Committee makes the following rules in exercise of the powers conferred by sections 75 and 76 of the Courts Act 2003[^f00001], after consulting in accordance with section 79 of the Courts Act 2003[^f00002]:

Citation and commencement

1

These rules may be cited as the Family Procedure (Amendment) (No.5) Rules 2012 and come into force on 31st January 2013.

Amendments to the Family Procedure Rules 2010

2

The Family Procedure Rules 2010[^f00003] are amended in accordance with rules 3 to 6.

3

In rule 1.4 for paragraph (2) substitute—

(2) Active case management includes— (a) setting timetables or otherwise controlling the progress of the case; (b) identifying at an early stage— (i) the issues; and (ii) who should be a party to the proceedings; (c) deciding promptly— (i) which issues need full investigation and hearing and which do not; and (ii) the procedure to be followed in the case; (d) deciding the order in which issues are to be resolved; (e) controlling the use of expert evidence; (f) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure; (g) helping the parties to settle the whole or part of the case; (h) encouraging the parties to co-operate with each other in the conduct of proceedings; (i) considering whether the likely benefits of taking a particular step justify the cost of taking it; (j) dealing with as many aspects of the case as it can on the same occasion; (k) dealing with the case without the parties needing to attend at court; (l) making use of technology; and (m) giving directions to ensure that the case proceeds quickly and efficiently.

4

Omit rules 12.20 and 12.74.

5

For “proceedings relating to children” substitute “children proceedings” in —

• (a) the headings to Part 12 and to Part 12, Chapter 7; and

• (b) rule 12.43(a).

6

For Part 25 substitute Part 25 (Experts and assessors) as set out in the Schedule to these rules.

SCHEDULE

Signed

Paul Carr — Martyn Cook — Chris Darbyshire — Bruce Edgington — Angela Finnerty — Mike Hinchliffe — Ruth Lindley-Glover — David Salter — Lucy Theis, J, — Philip Waller — John Wilson

I allow these Rules

Signed by authority of the Lord Chancellor

McNally — Minister of State — Ministry of Justice — 10th December 2012

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

These rules amend the Family Procedure Rules 2010 by—

• in Part 1 (the Overriding Objective) replacing paragraph (2) of rule 1.4 with a new paragraph (2) which adds “ controlling the use of expert evidence “ to what is included in active case management and alters the order of matters which is included placing setting timetables and controlling the progress of the case first on the list;

• in Part 12 (Proceedings relating to children except parental order proceedings and proceedings for applications in adoption, placement and related proceedings) omitting rules 12.20 and 12.74 so that similar rules can be contained alongside other rules relating to expert evidence and substituting the term “children proceedings” for “proceedings relating to children”in the heading to the Part and to Chapter 7 and in rule 12.43(a ) so that this terminology is in line with that used in the substituted Part 25;

• inserting a new Part 25 (Experts and assessors) which replaces the existing Part and changes that Part by mainly- altering the duty to restrict expert evidence to one where expert evidence has in the opinion of the court to be necessary to assist the court to resolve the proceedings; defining “expert” and “single joint expert” by reference to a person who provides expert evidence for use in the proceedings and expressly expanding those who are excluded from being an expert to include, for example, a person providing or giving evidence who is member of staff of a local authority which is a party to the proceedings in the course of the person’s work for the local authority; providing for factors to which the court is to have particular regard when deciding in children proceedings whether to give permission for an expert to be instructed, a child to be medically or psychiatrically examined or otherwise assessed or expert evidence (in any form) to be put before the court and for factors relevant to giving permission for expert evidence to be put before the court in relation to other family proceedings such as financial remedy proceedings; requiring, unless the court directs otherwise, the application for the court’s permission relating to expert evidence to be made as soon as possible and no later than a specified hearing in certain proceedings-for example, no later than the Case Management Conference in public law proceedings; providing for the application of the Part 18 procedure to applications for the court’s permission, a draft order to be attached to the application and in children proceedings, for the application to state the questions which the expert is to be required to answer; in children proceedings, where the court grants permission, providing for the court to approve the questions which the expert is required to answer and specify the date by which the expert is to receive the letter of instruction; requiring within 10 business days after the final hearing for the party instructing the expert or party responsible for doing so to inform the expert in writing of the court’s determination and the use made by the court of the expert’s evidence; requiring copies of orders and other documents affecting an expert and filed after the time of instruction of the expert to be sent to the expert within a specified time and after the final hearing, for the expert to be sent a copy of the final order of the court, any transcript of the court’s decision or in the magistrates’ court, reasons for the decision.

A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is annexed to the Explanatory Memorandum which is available alongside the instrument on www.legislation.gov.uk

Footnotes

[^f00001]: 2003 c.39. Section 75 was amended by sections 15(1) and 146 of and paragraphs 308 and 338 of Schedule 4 and Part 2 of Schedule 18 to the Constitutional Reform Act 2005 (c.4). Section 76 was amended by section 62(7) of the Children Act 2004, section 261(1) of and paragraph 172 of Schedule 27 to the Civil Partnership Act 2004 (c.33), section 12(2) of and paragraph 29 of Part 2 of Schedule 1 to the Constitutional Reform Act 2005 and section 25 of and paragraph 14 of Part 2 of Schedule 3 to the Children, Schools and Families Act 2010 (c.26).

[^f00002]: Section 79 was amended by sections 15(1) and 146 of and paragraphs 308 and 341(1) of Schedule 4 and Part 2 of Schedule 18 to the Constitutional Reform Act 2005.

[^f00004]: See rule 12.25 and Practice Direction 12A.

[^f00005]: See rule 12.31 and Practice Direction 12B.

[^f00006]: See rule 14.8.

[^f00007]: See rule 9.15.

[^f00008]: Section 63 was amended by sections 14(2) of the Courts and Legal Services Act 1990 and by articles 6(d)(i) to (iv) of the Civil Procedure (Modification of Enactments) Order 1998 (S.I. 1998/2940) and prospectively amended by section 14(3) and 125(7) of and Schedule 20 to the Courts and Legal Services Act 1990.