Family Proceedings (Amendment No. 3) Rules 1997
| Jurisdiction | UK Non-devolved |
| Citation | SI 1997/1893 |
1997 No. 1893 (L. 29)
COUNTY COURTS
FAMILY PROCEEDINGS
SUPREME COURT OF ENGLAND AND WALES
The Family Proceedings (Amendment No. 3) Rules 1997
Made 28th July 1997
Laid before Parliament 31th July 1997
Coming into force 1st October 1997
We, the authority having power under section 40(1) of the Matrimonial and Family Proceedings Act 19841to make rules of court for the purposes of family proceedings in the High Court or county courts, in the exercise of the powers conferred by the said section 40, hereby make the following Rules:
Citation, commencement and interpretation
1.—(1) These Rules may be cited as the Family Proceedings (Amendment No. 3) Rules 1997 and shall come into force on 1st October 1997.
(2) In these Rules, a rule referred to by number means the rule so numbered in the Family Proceedings Rules 19912and a reference to Appendix 1 is a reference to Appendix 1 to those Rules.
2. For rules 3.8, 3.9 and 3.103, there shall be substituted the following–
“Applications under Part IV of the Family Law Act 1996 (Family Homes and Domestic Violence)4
3.8.—(1) An application for an occupation order or a non-molestation order under Part IV of the Family Law Act 1996 shall be made in Form FL401.
(2) An application for an occupation order or a non-molestation order made by a child under the age of sixteen shall be made in Form FLA401 but shall be treated, in the first instance, as an application to the High Court for leave.
(3) 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.
(4) An application in Form FL401 shall be supported by a statement which is signed by the applicant and is sworn to be true.
(5) Where an application is made without giving notice, the sworn statement shall state the reasons why notice was not given.
(6) An application made on notice (together with the sworn statement and a notice in Form FL402) shall be served by the applicant on the respondent personally not less than 2 days before the date on which the application will be heard.
(7) The court may abridge the period specified in paragraph (6).
(8) Where the applicant is acting in person, service of the application shall be effected by the court if the applicant so requests.
This does not affect the court’s power to order substituted service.
(9) 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 shall make an order for transfer in Form FL417 if it seems necessary or expedient to do so.
(10) Rule 9.2A shall not apply to an application for an occupation order or a non-molestation order under Part IV of the Family Law Act 1996.
(11) 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.
(12) Where the application is for the transfer of a tenancy, notice of the application shall be served by the applicant on the other cohabitant or spouse and on the landlord (as those terms are defined by paragraph 1 of Schedule 7 to the Family Law Act 1996) and any person so served shall be entitled to be heard on the application.
(13) Rules 2.62(4) to (6) and 2.63 (investigation, requests for further information) shall apply, with the necessary modifications, to
(a)
(a) an application for an occupation order under section 33, 35 or 36 of the Family Law Act 1996, and
(b)
(b) an application for the transfer of a tenancy,
as they apply to an application for ancillary relief.
(14) Rule 3.6(7) to (9) (Married Women’s Property Act 18825) shall apply, with the necessary modifications, to an application for the transfer of a tenancy, as they apply to an application under rule 3.6.
(15) The applicant shall file a statement in Form FL415 after he has served the application.
Hearing of applications under Part IV of the Family Law Act 1996
3.9.—(1) An application for an occupation order or a non-molestation order under Part IV of the Family Law Act 1996 shall be dealt with in chambers unless the court otherwise directs.
(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 the sworn statement in support shall be served by the applicant on the respondent personally.
(3) 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.
(4) A copy of an order made on an application heard inter partes shall be served by the applicant on the respondent personally.
(5) Where the applicant is acting in person, service of a copy of any order made on the hearing of the application shall be effected by the court if the applicant so requests.
(6) The following forms shall be used in connection with hearings of applications under Part IV of the Family Law Act 1996–
(a)
(a) a record of the hearing shall be made on Form FL405, and
(b)
(b) any order made on the hearing shall be issued in Form FL404.
(7) The court may direct that a further hearing be held in order to consider any representations made by a mortgagee or a landlord.
(8) 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 this rule shall apply to the hearing of such an application.
Enforcement of orders made on applications under Part IV of the Family Law Act 1996
3.9A.—(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)
(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)
(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 proper officer shall–
(a)
(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)
(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.
(4) The court before whom a person is brought following his arrest may–
(a)
(a) determine whether the facts, and the circumstances which led to the arrest, amounted to disobedience of the order, or
(b)
(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 days' notice of the adjourned hearing.
Nothing in this paragraph shall prevent the issue of a a notice under CCR Order 29, rule 1(4) if the arrested person is not dealt with within the period mentioned in sub-paragraph (b)(i) above.
(5) The following provisions shall apply, with the necessary modifications, to the enforcement of orders made on applications under Part IV of the Family Law Act 1996–
(a)
(a) RSC Order 52, rule 7 (power to suspend execution of committal order);
(b)
(b) (in a case where an application for an order of committal is made to the High Court) RSC Order 52, rule 2 (application for leave);
(c)
(c) CCR Order 29, rule 1 (committal for breach of order);
(d)
(d) CCR Order 29, rule 1A (undertakings);
(e)
(e) CCR Order 29, rule 3 (discharge of person in custody);
and CCR Order 29, rule 1 shall have effect, as if for paragraph (3), there were substituted the following–
“(3)
“(3) At the time when the order is drawn up, the proper officer 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 (2).”.
(6) The court may adjourn consideration of the penalty to be imposed for contempts found provided and such consideration may be restored if the respondent does not comply with any conditions specified by the court.
(7) Where the court makes a hospital order in Form FL413 or a guardianship order in Form FL414 under the Mental Health Act 19836, the proper officer shall–
(a)
(a) send to the hospital any information which will be of assistance in dealing with the patient;
(b)
(b) inform the applicant when the respondent is being transferred to hospital.
(8) 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 under Schedule 5 to the Family Law Act 1996, the proper officer shall notify–
(a)
(a) the governor...
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