Family Solicitors

By Asia Razaq

On 6th April 2011 the Family Procedure Rules 2010 came into effect. These rules encompass all courts from the Family Proceedings Court to the High Court Family Division and all family proceedings. As a consequence there is no longer a need to cross refer between rules such as the Family Proceedings Courts (Children Act 1989) Rules 1991 or the County Court Rules 1981.

The purpose of the rules is to produce a set of Rules which are both comprehensive and comprehensible to both professionally qualified and lay court users.

The Rules are supplemented by Practice Directions issued by the President of the Family Division. The number of each Practice Direction coincides with the Part of the Family Procedure Rules to which it relates. For example, Part 12 deals with proceedings relating to children (excluding adoption) and Practice Directions 12A to 12P are the accompanying Practice Directions.

In some circumstances practitioners will need to pay more attention to the Practice Directions than the particular rule. The Rules therefore tell you what to do and the accompanying Practice Directions tell you how to do it. There is also an extensive suit of forms accompanying the Rules.

The Rules

The Rules are subject to an overriding objective. This is a mechanism in order to deal with cases justly, having regard to any welfare issues involved.

Part 1 of the Rules outlines the overriding objective as:
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

For Children’s Law Practitioners the impact of the Rules means there is one set of Rules applying to all proceedings concerning children in the Family Proceedings Court, the County Court and the High Court.

The Rules provide detailed provisions about the court's general case management powers and the implementation of the Pre-Application Protocol.

Alternative Dispute Resolution

The Court must consider at every stage of the proceedings whether ADR is appropriate and can adjourn the proceedings at any stage in order to enable the parties to engage in ADR.
The provisions of Part 3 of the Rules and the issue of Alternative Dispute Resolution (ADR) are very important.

Practice Direction 3 contains the pre-application protocol on Mediation Information and Assessment. This in effect initiates ADR prior to the commencement of proceedings. Whilst the Legal Services Commission has previously tried to make consideration of ADR a pre-requisite of applying for public funding the protocol brings this into courts domain at the pre-proceedings stage. As stated in the Practice Direction the rationale is to acknowledge that an adversarial court process is not always best-suited to the resolution of family disputes, particularly private law disputes relating to children.

The Practice Direction sets out best practice to be followed by any person who is considering making an application to court for an order in relevant family proceedings. Relevant family proceedings are defined in Annex B of the PD and include most private law applications except emergency applications and applications for enforcement orders. The Pre-Action Protocol itself is set out in Annex A.

Applicants will be expected to contact a family mediator to arrange the attendance at an information meeting about Mediation or other forms of ADR. In the Protocol this is referred to as a Mediation Information and Assessment Meeting. The Applicant has to provide the mediator with the contact details of the prospective Respondent so that that party can also be invited to attend a meeting. The Respondent will be invited, if they agree, to either a joint meeting if appropriate or a separate meeting.

Paragraph 8 of the Protocol states that if after complying with the Protocol any application is made to the court, the Applicant should at the same time file a completed Family Mediation Information and Assessment Form or FM1 confirming attendance at a Mediation Information and Assessment meeting or giving reasons for not having attended such a meeting.

Commencement of proceedings and service

Part 5 of the Rules deals with the commencement of proceedings and Practice Direction 5 A lists the individual forms required for each type of application.

The requirements for service are addressed in Part 6 of the Rules and by Practice Direction 6A, 6B and 6C. The methods of service are outlined at Rule 6.23 which includes service by electronic mail if this is agreed. Any agreement to accept service by electronic mail must have been agreed in writing by the receiving party to be effective and may be limited by the recipient in respect of the format and size of attached documents (PD 6A paras 4.1-4.4).

Children’s Proceedings

There is no substantial change to procedures in either Care or Private law children's proceedings.

However, practitioners specialising in proceedings which relate to children and their welfare will be primarily concerned with the provisions of Parts 12 and 14 of the Rules.

Part 12 deals with Emergency Protection Orders, Section 8 and Section 31 applications, child abduction application and other Hague Convention applications. Part 14 outlines the procedures in relation to adoption

As far as procedures are concerned there are no substantial changes. The requirements for the service of applications and documents are set out in detail in Practice Direction 12 C.

Statement of Truth.

Part 17 of the Rules outlines the documents which must be verified by a Statement of Truth. Therefore all statements of case, witness statements and applications to the court must contain a statement by the parties that they believe the facts they have set out to be true.
The consequence of not including a Statement of Truth in a Statement of case or a witness statement is that a party who adduces it cannot rely upon its contents unless the court allows that party to do so.

The form or wording of a Statement of Truth is set out in Practice Direction 17 A 2.1 to 2.3.

Conduct of Hearings

In relation to the conduct of hearings Part 22 sets out the powers of the court to control the way in which evidence is given. Rule 22.1 expressly sets this out:

"The court may control the evidence by giving directions as to a)the issues on which it requires evidence; b)the nature of the evidence which it requires to decide those issues; and c)the way in which the evidence is to be placed before the court."

Part 22.2 effectively restricts the giving of oral evidence to final hearings. Witnesses' evidence at interim hearings should be proved by their written evidence. However, this restriction on the use of oral evidence at interim hearings does not apply to secure accommodation applications or interim care and supervision applications (Part 2