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FAMILY PROCEDURE RULE COMMITTEE

Minutes of the meeting held on Monday 3 April 2006

Present: Members
The Right Honourable Sir Mark Potter, President of the Family Division– Chairman
The Right Honourable Lord Justice Wall – Deputy Chairman
District Judge Duncan Adam – district judge (county court)
John Baker – justices’ clerk
The Honourable Mr Justice Charles - High Court judge
Her Honour Judge Angela Finnerty – circuit judge
Mike Hinchliffe – CAFCASS
Charles Hyde – barrister
Susan Jones – barrister
District Judge Katharine Marshall - district judge (magistrates’ courts)
Clive Redley – solicitor
David Salter - solicitor
Senior District Judge Waller – district judge (PRFD)

Guests
Richard Crouch - Daniel Fox - John Kingston - Chelly Milliken - Cheryl Morris -
Vicenta Pallet - Victoria Smith - Richard Strong - Elizabeth Walsh

Officials
Anne Herd, Legal Group, DCA
Vicky Baum, Legal Group, DCA
Jeremy Hodges, Legal Group, DCA
Andrew Frazer, Head, Civil Law & Justice Division, HMCS
Alex Clark, Family Justice Division, HMCS
Vicky Rayne, Family Justice Division, HMCS
Diana Roy, Family Justice Division, HMCS
Katherine Fox, Crown Dependencies Branch, DCA
Andrea Scotland, Civil Law & Justice Division, HMCS
Erika Maass, Family Justice Division, HMCS
Daniel Webb, Civil Law & Justice Division, HMCS
Clive Buckley (secretary), Civil Law & Justice Division, HMCS

ANNOUNCEMENTS AND APOLOGIES

1.1 The Chairman welcomed guests to the meeting; the first open meeting held by any DCA sponsored rule committee. He outlined the work of the Committee since its creation in 2004 and its commitment to openness in its working practices. In addition to observing the meeting, guests were afforded the opportunity of putting questions to the Committee, which were taken at the conclusion of the Committee’s business (see annex A attached).

1.2 Apologies had been received from Martyn Cook, Bruce Edgington and Jane Probyn (members) and from Bebe Chu, Fiona Pointer and Gary Westcar (guests).

MINUTES OF THE LAST MEETING: 6 March 2006

2. The minutes were approved.

MATTERS ARISING

3.1 Practice Directions under s.81(1) Courts Act 2003 (para 5)

It was confirmed that the reference to the civil division of the Court of Appeal in section 81(1) of the Courts Act 2003, as amended by the Constitutional Reform Act 2005, appears inadvertently. Proceedings in the Court of Appeal are not family proceedings for the purposes of s.81. Therefore, Practice Directions made under s.81 will not apply to proceedings in the Court of Appeal.

3.2 S.7 Matrimonial Causes Act 1973 (para 7.1)

It was confirmed that the proposal from Resolution put forward by David Salter has been referred to the Family Justice Council’s Ancillary Relief Advisory Committee (ARAC) and will appear on the agenda for its May meeting.

The Committee was informed that the Department has not yet formed a policy view but looks forward to receiving the reaction of ARAC to the proposal.

David Salter elaborated on how the scheme might work in practice. It was envisaged that there would be a joint application by the parties either before the issue of a petition or between the issue of a petition and the granting of a decree nisi (using existing terminology). The joint application would be supported by the agreement and a summary of financial disclosure.

The court would decide whether or not to give approval to the agreement and, if so, make directions regarding its conversion into an order upon decree. He added that the paper had been referred to the Association of District Judges, who had welcomed the proposal.

The Chairman concluded that initial reaction to the proposal appears favourable but it is now largely a matter for policy consideration and therefore passes beyond the remit of the Committee.

FAMILY PROCEDURE RULES

First draft rules relating to matrimonial and civil partnership proceedings

4. The draft rules and Paper 3 were considered.

4.1 Paper 3

The following conclusions were reached on each of the issues raised in Paper 3:

(i) Draft rule 7: It was agreed that the term ‘withdrawing of application before service’ should replace the current wording “discontinuance of cause before service of petition”.

(ii) Draft rule 12: In a number of cases petitions require minor amendments before the directions for trial stage. To follow the CPR Part 17 practice of not allowing amendments after service without permission of the court or the consent of the other party would lead to an unnecessary increase in the number of applications to the court. Harmonisation in this instance would not be appropriate.

It was agreed that the existing provision that a petition or answer may be amended without leave until directions for trial have been granted should be retained.

(iii) Draft rule 13: Under the current rules a respondent may file an answer to the petition incorporating a cross prayer or may file a separate free-standing petition. Under the draft rule an application by the respondent would need to be filed within a prescribed time period and within the existing proceedings.

It was agreed that the approach in draft rule 13 should be followed. There would need to be provision for the applications to be heard together.

The words ‘unless the court gives permission’ should be moved to the beginning of the draft rule.

(iv) Draft rule 15: The general consensus was that a provision staying an application if it has not been proceeded with within a prescribed time would not be appropriate in matrimonial/civil partnership proceedings. There may be cases where parties are negotiating a financial settlement or attempting a reconciliation but wish to keep the petition on file. An automatic stay may have the effect of leading parties into divorce too quickly.

District Judge Adam agreed there should not be an automatic stay but would like some form of court control of cases that do not progress. He emphasised that this would be for the purpose of assisting the parties rather than the disposal of cases. However, there were concerns expressed about imposing further burdens on court staff to monitor cases upon which no action has been taken, particularly given the limitations of the IT systems supporting the family courts.

It was also questioned, in the event of a stay, what the procedure would be for removing the stay.

ACTION: Vicky Baum to re-consider the question raised in paragraph 15 of Paper 3 in light of the comments made and to email any further thoughts to those members with an interest in this particular issue.

(v) Draft rules 16-22 It was acknowledged that although the question of disclosure and inspection rarely arises in matrimonial cases, there still needs to be provision by rule to cater for such cases. It was also recognised that in light of the Committee’s decision that the Family Procedure Rules should be a self-contained set of rules, cross-referencing to other rules cannot be relied upon.

It was agreed that disclosure should not be automatic but where a disclosure order is made, inspection of documents listed should be automatically permitted. Where the party making disclosure does not want there to be inspection, the onus should be on that party to apply to the court.

ACTION: The emphasis of the rule to be changed accordingly.

(vi) Draft rules 26-28

The move away from the Special Procedure was welcomed.

The approach contained in draft rules 26 to 28 was approved, but the following specific points were made:

draft rule 27(2): For consistency with other rules substitute the word “opposes” for “objects”.

draft rule 27(3): It was questioned whether an order for costs could be made at this stage. It was agreed that the rule be re-phrased to provide that the court may certify that the applicant is entitled to costs.

The provisions relating to case management hearings in defended cases struck the right balance. It was confirmed that general case management powers will appear elsewhere in the rules.

Service is established by the filing of an acknowledgement of service. On applications for a conditional order, there will need to be provision for deeming service and dispensing with service.

It was confirmed that rules regarding service in all family proceedings are being considered separately and during the course of that exercise it will be seen whether it is necessary to have bespoke rules for service in relation to matrimonial and civil partnership proceedings.

(vii) Draft rule 37: The current rules relating to the powers of the Queen’s Proctor address the issue of decrees obtained by collusion. Any revised rules must retain the Queen’s Proctor’s ability to intervene and to make an application.

4.2 Other comments on draft rules

(i) draft rule 1(4) (references to a divorce county court or civil partnership proceedings county court to include a reference to the Principal Registry): Lord Justice Wall reminded members to remain alert to the need to make rules that are simply expressed and suggested that the wording of this draft rule (which follows the existing rule) be re-examined.

ACTION: Drafters to attempt simplification of wording of the rule.

(ii) draft rule 31: District Judge Adam wondered whether this rule, which is based on the existing rule, might be more sensitively worded.

It was considered that the provision of court appointed medical examiners should be retained to ensure independence.

ACTION: Drafters to re-examine the wording of the rule and consider whether any of the detail might more appropriately be included in a Practice Direction.

(iii) draft rule 22(3): Charles Hyde suggested that the power to make an order restricting or prohibiting the use of a document which has been disclosed should be extended to draft rule 22(2)(c) as in some circumstances such disclosure would affect a third party. Although rule 22(3) is likely to be a general power to make such an order, it would be preferable for the rule to make the position clear.

A similar point was raised in respect of draft rule 14(4).

ACTION: These draft rules follow the CPR but drafting lawyers will re-examine them.

(iv) draft rule 15 Paper 3 paragraph 17: Mr Justice Charles was concerned about the exclusion of provision for a civil restraint order. In courts other than the High Court, there is a need for a sweep up provision for all family proceedings if it is to be excluded from the matrimonial/civil partnership rules.

4.3 Other comments on policy

(i) Third parties

On a petition filed under s.1(2)(a) Matrimonial Causes Act 1973 there is no requirement to name the person with whom the respondent is alleged to have committed adultery. District Judge Adam suggested that there be a prohibition on naming a third party unless the court gives permission. He considered that naming an alleged adulterer can inflame matters and to prohibit such naming would reduce the temperature. Additionally, it would streamline the procedure as service on the alleged adulterer would not be required.

(ii) Procedure under s.41 Matrimonial Causes Act 1973

District Judge Duncan Adam suggested that for the purposes of s.41 MCA a greatly simplified version of Form M4 (statement of arrangements for children) could be prescribed as the current form contains detail that is not required. The necessary information relating to children could even be included in the form of application for a matrimonial order.

The Senior District Judge agreed that there could be scope for adjusting the Form M4 to make the questions more relevant but felt it should still remain as a separate form, so as not to make the application form more cumbersome.

Conclusion: District Judge Adam offered to put his views in a paper and this offer was gratefully accepted.

(iii) Joint applications

Had Part II of the Family Law Act 1996 been implemented, joint applications for matrimonial orders would have been permissible. David Salter suggested consideration be given to permitting joint applications under the new rules.

ACTION: It was thought that this would be difficult under the existing legislative framework but officials would investigate the possibility.

(iv) Section 8 Children Act orders:

Susan Jones pointed out that under the existing Children (Allocation of Proceedings) Order, proceedings to vary an existing Section 8 order should be commenced in the court that made the original order. Therefore, where such an order was made in a family proceedings court, a court dealing with s.41 Matrimonial Causes Act 1973 that considers it likely that Children Act powers need to be exercised, is required to refer the matter back to the family proceedings court.

ACTION: Officials will take this point into account when considering the Allocation of Proceedings Order.

4.4 Forms: Application for a dissolution/divorce/separation/nullity order

No objection was raised to the inclusion of all forms of relief being incorporated in a single form.

The following points were made:

(i) the court’s jurisdiction is the first thing the court needs to consider. The paragraph relating to jurisdiction should therefore appear nearer the beginning of the form.

(ii) In paragraph 2 of Part 2 the words ‘with a [man][woman]’ should be omitted.

(iii) In paragraph 2(c) of Part 2 the word ‘petitioner’ should read ‘applicant’.

ACTION: Members to send any further comments on the draft rules and forms to the Secretary in writing.

Agenda forward to June.

PENSIONS ACT 2004 – PENSION PROTECTION FUND

5. Paper 6 was considered.

The policy requirements for amendments to the Family Proceedings Rules were noted.

The Committee decided that amendments to Form E to capture the information required relating to the Pension Protection Fund should be considered during the course of making new Family Procedure Rules.

The court is required to consider the position regarding pensions at the First Appointment and in the interim the Pension Inquiry Form can be used to ensure the necessary information is made available to the court.

ACTION: Draft Family Proceedings (Amendment) Rules to be sent to members of the Committee.

Members of the Family Proceedings Rule Committee to be invited, if content, to sign the draft rules.

CHILD CUSTODY RECIPROCITY BETWEEN JERSEY AND JURISDICTION OF THE U.K.

6. Paper 7 was considered.

It was confirmed that the reference in the Paper to the UN Convention on the Civil Aspects of International Child Abduction should be a reference to the Hague Convention.

The Committee noted the requirement for amendments to the Family Proceedings Rules arising out of the legislative changes in Jersey outlined in the Paper. Additionally, the Committee was informed of Guernsey’s intention to have the Hague Convention and European Convention extended to it and, accordingly, that there may be a requirement for similar rule changes in respect of Guernsey by mid 2007.

ACTION; Draft Family Proceedings (Amendment) Rules to be sent to members of the Committee.

Members of the Family Proceedings Rule Committee to be invited, if content to sign the draft rules.

PARENTING PLANS

7. As the revised Parenting Plans had not been provided to the Committee and the representative from Department for Education and Skills had been called away before the item was reached, the Committee decided to agenda forward this item.

ACTION: Agenda forward

Copies of revised parenting plans to be circulated to members in advance of the next meeting of the Committee

An official from the Department for Education & Skills to attend the next meeting of the Committee

ROUTES OF APPEAL/SINGLE FAMILY COURT/JUDICIAL RESOURCES REVIEW/ALLOCATION TO JUDICIARY DIRECTIONS

8. The Committee considered Paper 9.

The proposals regarding the intention to review and amend all appropriate Allocation Orders and Directions and to introduce a certificate mechanism to justify an appropriate tier of court were noted.

The Chairman reminded members of the changes to the statutory provisions for making Allocation of Proceedings Orders and Allocation to Judiciary Directions brought about by the Constitutional Reform Act 2005.

The Chairman also drew attention to other initiatives including the Carter Review of Legal Aid and the Child Care Review that may have an impact on the decisions taken regarding allocation of work between the different levels of court. If judicial recommendations are adopted, there may be a pre-proceedings protocol in public law cases laying down the need for local authorities to have a case plan in place, that would form the agenda for an early comprehensive directions hearing before a judge, This would concertina the first 3 stages of the Protocol and would be heard by a judge experienced in case management, whether a district judge of a county court or a district judge (magistrates’ court).

For so long as Public Law Children Act proceedings are required to be commenced in family proceedings courts and Private Law Children Act proceedings are commenced, by choice, in county courts, there will continue to be problems surrounding the appropriate forum for trial.

Routes of Appeal

Members were informed that it is intended to implement the recommendations of the Committee contained in its report “Routes of Appeal in Family Proceedings”, by rule or other secondary legislation, except recommendation 9.1(2) (no permission requirement whether the appeal is from a lay bench or from a district judge (magistrates’ court) whether sitting alone or with justices), which requires further consideration and recommendation 9.1(3) (allocation of appeals to the county court according to the nature and subject matter of the appeal) with 9.6, which would require primary legislation.

It is intended that the necessary legislative changes will be in place when the new Family Procedure Rules are made.

It was confirmed that an appeal from a district judge of the PRFD shall continue to lie to a judge of the High Court.

Allocation to Judiciary Directions

District Judge Katharine Marshall reminded members that she had queried the ticketing of judiciary in family proceedings courts which, notwithstanding the Constitutional Reform Act, still seemed to her to be under the direction of the Lord Chancellor. The Chairman queried this.

ACTION: Officials will report back with an answer to the query.

TRANSPARENCY IN FAMILY PROCEEDINGS

9. The Committee was informed that the Department had expected a Consultation Paper on transparency in family proceedings to be issued in March. However, following changes to ministerial responsibilities in the Department, a Consultation Paper has not yet been published. Because of the forthcoming pre local election purdah, publication of the Paper will not be before 5 May 2006.

In the meantime, officials have held consultation meetings with key stakeholders on the general issue which will feed into the eventual proposals.

ACTION: When the Consultation Paper is issued, copies to be distributed to members.

Agenda forward

ANY OTHER BUSINESS

10. It was agreed that the meeting of the Committee scheduled for the 8th May 2006 be cancelled.

It was agreed that the next meeting of the Children’s Proceedings Working Party be moved to Monday 8th May 2006 at 10.30 a.m. in Selborne House, 8th Floor

It was subsequently agreed that the next meeting of the Financial Proceedings Working Party be held on Monday 8th May 2006 at 2.00 p.m. in Selborne House 8th Floor.

DATE OF NEXT MEETING

11. Monday 5th June 2006 at 10.30 a.m. in Selborne House, 8th Floor.

Clive Buckley

Secretary

April 2006

020 7210 1497

clive.buckley@hmcourts-service.gsi.gov.uk

ANNEX A (see paragraph 1.1 of the minutes)

Pre-submitted written questions were invited from those attending the open meeting. The Chairman indicated that following the answer given to each question there would be scope for a supplementary question to be put verbally.

This is a record of the questions put and the answers given by the Chairman and other members of the Committee

Richard Strong Q. Would the potential introduction of Electronic Filing and Document Management (EFDM) in 2008 cause the FPRC to amend the Family Proceedings Rules and re-prescribe official forms?

A. The Committee would need to consider the potential implications of the EFDM in drafting relevant rules. A representative of the EFDM project team within the Department for Constitutional Affairs is scheduled to appear before the Committee later in the year to brief members on the implications of the work.

The EFDM project team will be consulting Lord Justice Neuberger shortly on the scope and terms of reference for a working group to include Judges, departmental representatives (business and I.T.) and others with an interest, to consider what changes may be needed to court and judicial processes and the potential rule and practice direction changes that may be required if EFDM were to be introduced.

The EFDM project team has already indicated to the questioner that they will be contacting him later in the year to seek views on its work at appropriate times.

Victoria Smith Q. If there were one thing that you could change about the family procedure rules what would it be?

A. (from various members):

· To create a single harmonised set of Family Procedure Rules across the High Court, county courts and magistrates’ courts.

· To simplify the rules as there are more litigants in person involved in family proceedings than in any other field of law.

· To simplify routes of appeal by the implementation of the Committee’s recommendations contained in its report “Routes of Appeal in Family Proceedings”.

Victoria Smith Q. What are your key objectives over the next 12 months?

A. The Committee’s objectives until Autumn 2007 (subject to ministerial approval) are:

· to align the procedures in all levels of court, so far as possible

· to create a single unified code of practice along the lines of the CPR

· to harmonise the new rules with the Civil Procedure Rules (CPR) where appropriate;

· to remove the more old-fashioned language of the existing rules (e.g. petition, decree, suit, cause) whilst being careful not to introduce phrases that are no more intelligible than the ones replaced.

Fiona Pointer Q. The whole procedure of sorting out finances and child maintenance can become very drawn out which obviously adds to the stress. Are there any plans to perhaps reduce the length of time the whole procedure takes and change it in any way?

A. The Committee will try to improve procedures when making the new rules but speed is not always easy to achieve. Even where the parties are available and ready for hearing there may be difficulty in getting a case heard because of crowded court lists. Efforts are being made to improve matters but without extra judges and extra court space this is difficult. Additionally, the volume of public law work is increasing and a lot of court time is taken up by these cases.

The Committee’s responsibility is for rules governing the practice and procedure in the family courts. So far as financial proceedings are concerned, the ancillary relief procedure was revised in June 2000. This has led to a significant number of cases being resolved by consent and a reduction in the number of cases proceeding to final hearing. The rules have to balance the need to cater for the simplest cases and the most complex cases. There is scope under the rules to combine the first and second stages of the procedure or to move directly to a final hearing.

The Committee has established a Financial Proceedings Working Party which is now looking at whether any further improvements to the procedures can be made.

Vicenta Pallett Q. To assist the Committee’s strategy for making Family Procedure Rules, working parties have been created to examine rules relating to (i) experts in family proceedings (ii) financial proceedings and (iii) children’s proceedings. In relation to (iii), subsection 1(b) and 2 of s.122 of the Adoption and Children Act 2002 provide for rule-making powers for the separate representation of children in Children Act cases generally and, in particular, in s.8 cases. In a written Parliamentary answer of 11 January 2006, the Parliamentary Under-Secretary of State in the Department for Constitutional Affairs (DCA), Baroness Ashton of Upholland, stated that to inform the government’s consideration of what rules of court might be made, the DCA had commissioned research by Cardiff University so as to understand whether formal representation through a solicitor and guardian was meeting children’s needs or whether there were other ways in which their needs could be met. The Cardiff University research with children and families focused on how children were heard and how they were involved when separately represented under the existing r.9.5 of the Family Proceedings Rules 1991 (S.I. 1991/1247). The final draft of that research was apparently submitted to the DCA on or around 17 March 2006. Could the committee state:

1. whether the appropriate rules are likely to be made

2. when the Cardiff research will be published

3. what is the effect of the small number of children interviewed for the research (said to be 15 out of a total of 224) and the small number of parents interviewed (said to be 22 out of 121 cases examined from court records).

A. Proposals for any draft rules under s.122 of the Adoption and Children Act 2002 have not yet been put before the Committee. S.122 amends the Children Act 1989 so as to provide that rules of court may make provision for children to be separately represented in Children Act proceedings, including proceedings under section 8 (residence, contact and other orders with respect to children).

The research into the operation of rule 9.5 of the Family Proceedings Rules 1991 by Cardiff University commissioned by the DCA was published on 23 March.

The research is outside the remit of the Committee so it can’t be commented upon, but the key recommendations contained in it are:

· The child should always be separately represented before making enforcement orders under the Children and Adoption Bill (upon enactment the Children and Adoption Act).

· Application of the potential advantages of r9.5 earlier in the proceedings rather than being a measure of last resort by a judge exasperated by the intractability of the case.

· Need for judicial continuity so that the same judge hears the same cases, thereby gaining familiarity with them and enabling cost-effective proceedings.

· Need for children to have reliable, explanatory and age-appropriate information about their parents’ separation/divorce at the very beginning of the process.

· Need for children to have a “passage agent” - someone, apart from their parent(s), to support them through the litigation process.

· Work towards achieving less intimidating and more child-friendly court settings. The current image is of courts as scary places with a punitive ethos.

· Use of psychometric measures to be applied in advance of the litigation process to identify features of the case which are likely to produce intractable behaviour on the part of parents (unless intervention in the form of r9.5 can be quickly applied).

· Change FamilyMan (the IT system supporting the courts) to indicate (i) if the tandem model was used (ii) who was appointed to represent the child [i.e. CAFCASS, NYAS, private solicitor] (iii) name of judge hearing the case.

Copies of the research were made available at the meeting.

Gary Westcar Q. “What substantive Statute Law/Act allows/permits FPRC to make Rules/Statutory Instruments? Is it the Courts Act?

A. Yes, section 75(2) of the Courts Act 2003 states that “The Family Procedure Rules are to be made by a committee known as the Family Procedure Rule Committee “.

The Committee must before making rules consult such persons as they consider appropriate and meet (unless it is inexpedient to do so)(s.79((1)(2)). Those rules must be then submitted to the Lord Chancellor, who may allow or disallow the rules (he must give the committee written reasons if he disallows the rules) (s. 79(3)(4)). The rules will then be contained in a statutory instrument which will be laid before Parliament (s. 79(6)).

The Committee is in a transitional phase and has not yet acquired its full powers to make rules for all family proceedings in all levels of family court. In the interim, certain members of the Committee, appointed for that purpose, will make rules of court in the High Court and county courts under section 40 of the Matrimonial and Family Proceedings Act 1984. Additionally, in the interim, rules for family proceedings in the magistrates' courts will be made by the Lord Chief Justice, or a judicial office holder nominated by the Lord Chief Justice, (with the concurrence of the Lord Chancellor), on the advice of, or after consultation with, the Magistrates' Courts Rule Committee.

Gary Westcar Q. “What external groups/organisations has the FPRC consulted before ever making any Family Rules? “

A. The Committee has an obligation to consult on rules it proposes to make under s. 79(1) of the Courts Act.

The only rules that the FPRC has made so far have been the Family Procedure (Adoption) Rules 2005. Before draft rules were put to the Committee the Department for Constitutional Affairs carried out a public consultation in June 2004. Extensive contact with the full range of stakeholders was also carried out by departmental officials. Given these steps, the Committee agreed in July 2005 that consulting the President's Adoption Committee would be sufficient. The President's Adoption Committee included in its membership all the main stakeholders in the adoption and care field, including Barnados and the British Association for Adoption and Fostering.

The next major task for the Committee will be to make the new Family Procedure Rules. The Department again intends to consult on the key policy questions this summer. Once the rules have been drafted the Committee will then, in light of the process of public consultation, make a decision as to consultation on the rules themselves.

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