Citation, commencement and interpretation

1.-(1) These Rules may be cited as the Family Proceedings Courts (Matrimonial Proceedings etc) (Amendment) Rules 1997 and shall come into force on 1st October 1997.

(2) The Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991(2) shall be amended in accordance with the following provisions of these Rules and, in those provisions, any reference to a rule by number alone shall be construed as a reference to the rule so numbered in the said Rules of 1991.

2. The heading to Part II shall be amended by inserting at the end "AND PROCEEDINGS UNDER PART IV OF THE FAMILY LAW ACT 1996(3)".

3. Rule 2(1) shall be amended-

(a)by inserting, in the definition of "application" after the words "the Act", the words "or, as the case may be, the Family Law Act 1996";

(b)by omitting, in the definition of "court", the words "(save where section 16(5) of the Act applies)";

(c)by omitting the definition of "family protection order"; and

(d)by substituting, for the definition of "form", the following-

""form" means a form in Schedule 1 to these Rules and, where a form is referred to by number, means the form so numbered in that Schedule, with such variation as the circumstances of the particular case may require;".

4. Rule 2(2) shall be amended by inserting at the end "or, as the case may be, in the Family Law Act 1996".

5. Rule 3(1) shall be amended by substituting, for the words "Subject to paragraphs (3) and (4),", the words "Subject to paragraph (3) and rule 3A,".

6. Rule 3(1)(b) shall be amended by omitting the words "save where section 16(6) of the Act applies," and "and, in the case of an application under section 16, at least one day,".

7. Rule 3(2)(a) shall be amended by omitting the words "which in the case of an application under section 16 shall be no later than 14 days after receipt of the application".

8. Rule 3(2)(c) and (4) shall be omitted.

9. After rule 3, there shall be inserted the following new rule-

"Applications under Part IV of the Family Law Act 1996

3A.-(1) An application for an occupation order or a non-molestation order under Part IV of the Family Law Act 1996 (Family Homes and Domestic Violence) shall be made in Form FL401.

(2) An application for an occupation order or a non-molestation order which is made in other proceedings which are pending shall be made in Form FL401.

(3) An application in Form FL401 shall be supported-

(a)by a statement which is signed and is declared to be true; or

(b)with the leave of the court, by oral evidence.

(4) An application in Form FL401 may, with the leave of the justices' clerk or of the court, be made ex parte, in which case

(a)the applicant shall file with the justices' clerk or the court the application at the time when the application is made or as directed by the justices' clerk; and

(b)the evidence in support of the application shall state the reasons why the application is made ex parte.

(5) An application made on notice (together with any statement supporting it and a notice in Form FL402) shall be served by the applicant on the respondent personally not less than 2 business days prior to the date on which the application will be heard.

(6) The court or the justices' clerk may abridge the period specified in paragraph (5).

(7) Where the applicant is acting in person, service of the application may, with the leave of the justices' clerk, be effected in accordance with rule 4.

(8) Where an application for an occupation order or a non-molestation order is pending, the court shall consider (on the application of either party or of its own motion) whether to exercise its powers to transfer the hearing of that application to another court and the justices' clerk or the court shall make an order for transfer in Form FL417 if it seems necessary or expedient to do so.

(9) Where an order for transfer is made, the justices' clerk shall send a copy of the order-

(a)to the parties, and

(b)to the family proceedings court or to the county court to which the proceedings are to be transferred.

(10) A copy of an application for an occupation order under section 33, 35 or 36 of the Family Law Act 1996 shall be served by the applicant by first-class post on the mortgagee or, as the case may be, the landlord of the dwelling-house in question, with a notice in Form FL416 informing him of his right to make representations in writing or at any hearing.

(11) The applicant shall file a statement in Form FL415 after he has served the application.

(12) Rule 33A of the Family Proceedings Courts (Children Act 1989) Rules 1991(4) (disclosure of addresses) shall apply for the purpose of preventing the disclosure of addresses where an application is made in Form FL401 as it applies for that purpose in proceedings under the Children Act 1989(5).".

10. Rule 4(4) shall be amended by omitting the words "Save where section 16(6) of the Act applies,"

11. Rules 7(4), 7(5)(a), 9(1), 10(1), 12(3), 12(4), 13(1), 14 and 16(2) shall be amended by omitting the words "under the Act".

12. Rule 8(2) shall be amended by omitting the words "Without prejudice to section 16(6) of the Act, and".

13. Rule 11 shall be amended by substituting, for the words "proceedings under the Act", the words "any proceedings".

14. After rule 12, there shall be inserted the following new rules-

"Hearing of applications under Part IV of the Family Law Act 1996

12A.-(1) This rule applies to the hearing of applications under the Part IV of the Family Law Act 1996 and the following forms shall be used in connection with such hearings:

(a)a record of the hearing shall be made on Form FL405, and

(b)any order made on the hearing shall be issued in Form FL404.

(2) Where an order is made on an application made ex parte, a copy of the order together with a copy of the application and of any statement supporting it shall be served by the applicant on the respondent personally.

(3) Where the applicant is acting in person, service of a copy of an order made on an application made ex parte shall be effected by the justices' clerk if the applicant so requests.

(4) Where the application is for an occupation order under section 33, 35 or 36 of the Family Law Act 1996, a copy of any order made on the application shall be served by the applicant by first-class post on the mortgagee or, as the case may be, the landlord of the dwelling-house in question.

(5) A copy of an order made on an application heard inter partes shall be served by the applicant on the respondent personally.

(6) Where the applicant is acting in person, service of a copy of the order made on an application heard inter partes may, with the leave of the justices' clerk, be effected in accordance with rule 4.

(7) The court may direct that a further hearing be held in order to consider any representations made by a mortgagee or a landlord.

Applications to vary etc orders made under Part IV of the Family Law Act 1996

12B. An application to vary, extend or discharge an order made under Part IV of the Family Law Act 1996 shall be made in Form FL403 and rules 12 and 12A shall apply to the hearing of such an application.".

15. For rules 20 and 21, there shall be substituted the following-

"Enforcement of orders made on applications under Part IV of the Family Law Act 1996

20.-(1) Where a power of arrest is attached to one or more of the provisions ("the relevant provisions") of an order made under Part IV of the Family Law Act 1996-

(a)the relevant provisions shall be set out in Form FL406 and the form shall not include any provisions of the order to which the power of arrest was not attached; and

(b)a copy of the form shall be delivered to the officer for the time being in charge of any police station for the applicant's address or of such other police station as the court may specify.

• The copy of the form delivered under sub-paragraph (b) shall be accompanied by a statement showing that the respondent has been served with the order or informed of its terms (whether by being present when the order was made or by telephone or otherwise).

(2) Where an order is made varying or discharging the relevant provisions, the justices' clerk shall-

(a)immediately inform the officer who received a copy of the form under paragraph (1) and, if the applicant's address has changed, the officer for the time being in charge of the police station for the new address; and

(b)deliver a copy of the order to any officer so informed.

(3) An application for the issue of a warrant for the arrest of the respondent shall be made in Form FL407 and the warrant shall be issued in Form FL408 and delivered by the justices' clerk to the officer for the time being in charge of any police station for the respondent's address or of such other police station as the court may specify.

(4) The court before whom a person is brought following his arrest may-

(a)determine whether the facts, and the circumstances which led to the arrest, amounted to disobedience of the order, or

(b)adjourn the proceedings and, where such an order is made, the arrested person may be released and

(i)be dealt with within 14 days of the day on which he was arrested; and

(ii)be given not less than 2 business days' notice of the adjourned hearing.

• Nothing in this paragraph shall prevent the issue of a notice under paragraph (8) if the arrested person is not dealt with within the period mentioned in sub-paragraph (b)(i) above.

(5) Paragraphs (6) to (13) shall apply for the enforcement of orders made on applications under Part IV of the Family Law Act 1996 by committal order.

(6) Subject to paragraphs (11) and (12), an order shall not be enforced by committal order unless

(a)a copy of the order in Form FL404 has been served personally on the respondent; and

(b)where the order requires the respondent to do an act, the copy has been so served before the expiration of the time within which he was required to do the act and was accompanied by a copy of any order, made between the date of the order and the date of service, fixing that time.

(7) At the time when the order is drawn up, the justices' clerk shall-

(a)where the order made is (or includes) a non-molestation order, and

(b)where the order made is an occupation order and the court so directs,

issue a copy of the order, indorsed with or incorporating a notice as to the consequences of disobedience, for service in accordance with paragraph (6).

(8) If the respondent fails to obey the order, the justices' clerk shall, at the request of the applicant, issue a notice in Form FL418 warning the respondent that an application will be made for him to be committed and, subject to paragraph (12), the notice shall be served on him personally.

(9) The request for issue of the notice under paragraph (8) shall be treated as a complaint and shall-

(a)identify the provisions of the order or undertaking which it is alleged have been disobeyed or broken;

(b)list the ways in which it is alleged that the order or undertaking has been disobeyed or broken;

(c)be supported by a statement which is signed and is declared to be true and which states the grounds on which the application is made,

and, unless service is dispensed with under paragraph (12), a copy of the statement shall be served with the notice.

(10) If an order in Form FL419 (a committal order) is made, it shall include provision for the issue of a warrant of committal in Form FL420 and, unless the court otherwise orders-

(a)a copy of the order shall be served personally on the person to be committed either before or at the time of the execution of the warrant; or

(b)the order for the issue of the warrant may be served on the person to be committed at any time within 36 hours after the execution of the warrant.

(11) An order requiring a person to abstain from doing an act may be enforced by committal order notwithstanding that a copy of the order has not been served personally if the court is satisfied that, pending such service, the respondent had notice thereof either-

(a)by being present when the order was made;

(b)by being notified of the terms of the order whether by telephone or otherwise.

(12) The court may dispense with service of a copy of the order under paragraph (6) or a notice under paragraph (8) if the court thinks it just to do so.

(13) Where service of a notice to show cause is dispensed with under paragraph (12) and a committal order is made, the court may of its own motion fix a date and time when the person to be committed is to be brought before the court.

(14) Paragraphs (6) to (10), (12) and (13) shall apply to the enforcement of undertakings with the necessary modifications and as if

(a)for paragraph (6) there were substituted the following-

"(6) A copy of Form FL422 recording the undertaking shall be delivered by the justices' clerk to the party giving the undertaking

(a)by handing a copy of the document to him before he leaves the court building; or

(b)where his place of residence is known, by posting a copy to him at his place of residence; or

(c)through his solicitor,

and, where delivery cannot be effected in this way, the justices' clerk shall deliver a copy of the document to the party for whose benefit the undertaking is given and that party shall cause it to be served personally as soon as is practicable.";

(b)in paragraph (12), the words from "a copy" to "paragraph (6) or" were omitted.

(15) Where a person in custody under a warrant or order, desires to apply to the court for his discharge, he shall make his application in writing attested by the governor of the prison showing that he has purged or is desirous of purging his contempt and the justices' clerk shall, not less than one day before the application is heard, serve notice of it on the party (if any) at whose instance the warrant or order was issued.

(16) The court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify.

(17) Where execution of an order of committal is suspended by an order under paragraph (16), the applicant for the order of committal must, unless the court otherwise directs, serve on the person against whom it was made a notice informing him of the making and terms of the order under that paragraph.

(18) The court may adjourn consideration of the penalty to be imposed for contempts found proved and such consideration may be restored if the respondent does not comply with any conditions specified by the court.

(19) Where the court makes a hospital order in Form FL413 or a guardianship order in Form FL414 under the Mental Health Act 1983(6), the justices' clerk shall-

(a)send to the hospital any information which will be of assistance in dealing with the patient;

(b)inform the applicant when the respondent is being transferred to hospital.

(20) Where a transfer direction given by the Secretary of State under section 48 of the Mental Health Act 1983 is in force in respect of a person remanded in custody by the court, the justices' clerk shall notify-

(a)the governor of the prison to which that person was remanded; and

(b)the hospital where he is detained,

of any committal hearing which that person is required to attend and the justices' clerk shall give notice in writing to the hospital where that person is detained of any further remand.

(21) An order for the remand of the respondent shall be in Form FL409 and an order discharging the respondent from custody shall be in Form FL421.

(22) In paragraph (4) "arrest" means arrest under a power of arrest attached to an order or under a warrant of arrest.

Applications under Part IV of the Family Law Act 1996: bail

21.-(1) An application for bail made by a person arrested under a power of arrest or a warrant of arrest may be made either orally or in writing.

(2) Where an application is made in writing, it shall contain the following particulars-

(a)the full name of the person making the application;

(b)the address of the place where the person making the application is detained at the time when the application is made;

(c)the address where the person making the application would reside if he were to be granted bail;

(d)the amount of the recognizance in which he would agree to be bound; and

(e)the grounds on which the application is made and, where a previous application has been refused, full particulars of any change in circumstances which has occurred since that refusal.

(3) An application made in writing shall be signed by the person making the application or by a person duly authorised by him in that behalf or, where the person making the application is a minor or is for any reason incapable of acting, by a guardian ad litem acting on his behalf and a copy shall be served by the person making the application on the applicant for the Part IV order.

(4) The following forms shall be used:

(a)the recognizance of the person making the application shall be in Form FL410 and that of a surety in Form FL411;

(b)a bail notice in Form FL412 shall be given to the respondent where he is remanded on bail.".

16. For rule 24 there shall be substituted the following-

"Setting aside on failure of service

24. Where an application has been sent to a respondent in accordance with rule 4(1) and, after an order has been made on the application, it appears to the court that the application did not come to the knowledge of the respondent in due time, the court may of its own motion set aside the order and may give such directions as it thinks fit for the rehearing of the application.".

17. For rule 25 there shall be substituted the following-

"Proceedings with respect to which a single justice may discharge the functions of a court

25. The following proceedings are prescribed as proceedings with respect to which a single justice may discharge the functions of a court, that is to say, proceedings-

(a)in which an application is made ex parte for an occupation order or a non-molestation order under Part IV of the Family Law Act 1996;

(b)in accordance with rules 3, 3A(2), (6) and (8), 4, 6 (except paragraph (2)), 7 to 14 and 20(4).".

18. In Schedule 1-

(a)forms MAT 8, 10, 11, 12 and 13 shall be omitted; and

(b)at the end there shall be inserted the list of forms in Schedule 1 to these Rules and the forms in Schedule 2 to these Rules.

19. Subject to paragraph 10(3) of Schedule 9 to the Family Law Act 1996, rules 2 to 15, 17 and 18 shall not apply to proceedings commenced before Part IV of that Act came into force.

Rule 18

SCHEDULE 1FAMILY PROCEEDINGS COURTS (MATRIMONIAL PROCEEDINGS ETC) (AMENDMENT) RULES 1997

Rule 18

SCHEDULE 2

Explanatory Note

(This note is not part of the Rules)

These Rules amend the Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991 so as to provide for the making of applications under Part IV of the Family Law Act 1996 (Family Homes and Domestic Violence) and for the enforcement of orders made under that Part.

The 16 enables magistrates to set an order aside where there has been failure of service.