Draft Order laid before Parliament under section 108(2) and (3)(c)(i) of the Courts Act 2003, for approval by resolution of each House of Parliament.
2011 No. [XX] (L. [XX])
Family Proceedings
Senior Courts Of England And Wales
County Courts, England And Wales
Magistrates’ Courts, England And Wales
The Family Procedure (Modification of Enactments) Order 2011
Made ***
Coming into force as provided in article 1

The Lord Chancellor makes the following Order in exercise of the powers conferred by sections 80 and 108(6) of the Courts Act 2003:
2003 c.39. Section 80 was amended by section 15(1) of and paragraphs 308 and 343(1) to (4) of Part 1 of Schedule 4 to the Constitutional Reform Act 2005 (c.4). Section 108(6) was amended by section 15(1) of and paragraphs 308 and 348 of Part 1 of Schedule 4 to the Constitutional Reform Act 2005.
In accordance with section 80(1) of that Act, the Lord Chancellor has consulted the President of the Family Division (as the nominee of the Lord Chief Justice).
The Lord Chief Justice may nominate a judicial office holder to exercise his functions, under section 80(2) of the Courts Act 2003.
In accordance with section 108(2) of that Act, a draft of this instrument was laid before Parliament and approved by a resolution of each House of Parliament.

PART 1 INTRODUCTORY

1 Citation
This Order may be cited as the Family Procedure (Modification of Enactments) Order 2011 and will come into force on 6th April 2011 or, if later, on the day after the day on which it is made.

PART 2 MODIFICATION OF TERMINOLOGY

2 Terminology
1 For the purpose of this article—
“civil partnership proceedings” means proceedings for a civil partnership order; and
“civil partnership order” means one of the orders mentioned in section 37 of the Civil Partnership Act 2004.
2004 c.33.
2 In the following provisions, any reference to “ancillary relief” is to be read as a reference to “financial order”—
(a) section 49C of the Child Support Act 1991 (in so far as that section relates to civil partnership proceedings); and
1991 c.48. Section 49C was inserted by section 39 of the Child Maintenance and Other Payments Act 2008 (c.6).
(b) Part 10 of Schedule 5 and Part 9 of Schedule 15 to the Civil Partnership Act 2004.
3 Unless the context otherwise requires, in any provision which relates to civil partnership proceedings in any enactment, any reference to “cause” or “causes” is to be read as a reference to “proceedings”.

PART 3 AMENDMENTS TO PRIMARY LEGISLATION

3 Amendment of the Courts Act 1971
In section 52 of the Courts Act 1971, after subsection (3) insert—

“3A Subsection (3) does not apply to family proceedings (within the meaning of section 65 of the Magistrates’ Courts Act 1980).
1980 c.43. Section 65 was amended by section 15(4) of, and Part 1 of Schedule 12 to, the Civil Jurisdiction and Judgments Act 1982 (c.27), section 44 of the Matrimonial and Family Proceedings Act 1984 (c.42), section 86 of, and paragraph 54 of Schedule 10 to, the Social Security Act 1986 (c.50), section 33 of, and Schedules 2 and 4 to, the Family Law Reform Act 1987 (c.42), sections 92 and 108(7) of, and paragraph 8 of Schedule 11 and Schedule 15 to, the Children Act 1989 (c.41), sections 116 and 125(7) of, and paragraph 40 of Schedule 16 and Schedule 20 to, the Courts and Legal Services Act 1990 (c.41), sections 3 and 4 of, and Schedule 1 and paragraph 60 of Schedule 2 to, the Social Security (Consequential Provisions) Act 1992 (c.6), section 66(1) of, and paragraph 49 of Schedule 8 to, the Family Law Act 1996 (c.27), section 119 of, and paragraph 42 of Schedule 8 to, the Crime and Disorder Act 1998 (c.37), sections 83(5) and 85 of, and paragraph 2(1) to (3) of Schedule 8 and Part 9 of Schedule 9 to, the Child Support, Pensions and Social Security Act 2000 (c.19), section 139(1) of, and paragraphs 36 and 37 of Schedule 3 to, the Adoption and Children Act 2002 (c.38), section 109(1) of, and paragraph 214 of Schedule 8 to, the Courts Act 2003, section 261(1) of, and paragraph 65 of Schedule 27 to, the Civil Partnership Act 2004, section 103(1) of, and paragraph 2 of Schedule 2 to, the Childcare Act 2006 (c.21), section 166 of, and Part 5 of Schedule 15 to, the Health and Social Care Act 2008 (c.14), section 56 of, and paragraph 20 of Part 1 of Schedule 6 to, the Human Fertilisation and Embryology Act 2008 (c.22), section 72 of, and paragraphs 1 and 2 of Schedule 1 to, the Children and Families (Wales) Measure 2010 (nawm 1), and by S.I. 1993/623, 1997/1898, 2001/3929, 2005/265 and 2007/1655, and was modified by S.I. 2010/985.”

1971 c.23. Section 52 was amended by section 21 of and Schedule 2 to the Costs in Criminal Cases Act 1973 (c.14), section 154 of and paragraph 96 of Schedule 7 to the Magistrates’ Courts Act 1980 (c.43) and by section 109(1) of and paragraph 140(a) and (b) of Schedule 8 to the Courts Act 2003 (c.39).

Amendment of the Magistrates’ Courts Act 1980
4 The Magistrates’ Courts Act 1980 is amended as provided in articles 5 to 14.
5 In section 53 after subsection (3) insert—

“4 Subsections (1) to (3) are subject, for the purposes of family proceedings in any magistrates’ court, to other provision made by Family Procedure Rules.”

.
6 In section 54—
(a) for the heading, substitute “Adjournment and stays”; and
(b) after subsection (2) insert—

“3 In family proceedings a magistrates’ court may stay the whole or part of any proceedings or order either generally or until a specified date or event.
4 Subsections (1) and (2) are subject, for the purpose of family proceedings in any magistrates’ court, to other provision made by Family Procedure Rules.”

.
7 In section 55 after subsection (8) insert—

“9 Subsections (1) to (8) are subject, for the purpose of family proceedings in any magistrates’ court, to other provision made by Family Procedure Rules.”

.
8 In section 56 for “Where” substitute “Subject to other provision made by Family Procedure Rules for the purposes of family proceedings in any magistrates’ court, where”.
9 In section 57 for “Where” substitute “Subject to other provision made by Family Procedure Rules for the purposes of family proceedings in any magistrates’ court, where.”.
10 In section 64—
(a) in subsection (1) omit “periodical payment of money, or for the revocation, revival or variation of such an order” and substitute “variation of an order for the periodic payment of money”;
(b) after subsection (1) insert—

“1A Subsection (1) does not apply to family proceedings.”

;
(c) in subsection (2) for “subsection (1) above” substitute “subsection (1) or (4A)”; and
(d) after subsection (4) insert—

“4A Subject to the provisions of any other enactment, the costs of and incidental to all family proceedings in any magistrates’ court (including those required to be issued by complaint and those relating to the making of a periodic payment order) shall be in the discretion of that court and that court shall have full power to determine by whom and to what extent costs are to be paid.”

.
Section 64 was amended by section 33(1) of and paragraph 81 of Schedule 2 to the Family Reform Act 1987 (c.42).
11 After section 65 insert—

“65A Meaning of family procedure rules
In this Act, “Family Procedure Rules” means rules made under section 75 of the Courts Act 2003.
Section 75 was amended by section 15(1) and 146 of and Part 1 of Schedule 4 and paragraphs 308 and 338 of Part 2 of Schedule 18 to the Constitutional Reform Act 2005.”

.
12 After section 68 insert—

“68A Power of the magistrates’ court to order disclosure of documents, inspection of property etc. in family proceedings
(1) On the application, in accordance with rules of court, of a party to any family proceedings, a magistrates’ court, in such circumstances as may be prescribed, has the power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his or her possession, custody or power any documents which are relevant to any issue arising out of the proceedings—
(a) to disclose whether those documents are in that person’s possession, custody or power; and
(b) to produce such of those documents as are in that person’s possession, custody or power to the applicant or, on such conditions as may be specified in the order,—
(i) i)to the applicant’s legal advisers; or
(ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or
(iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.
(2) On the application, in accordance with rules of court, of a party to any family proceedings, a magistrates’ court, in such circumstances as may be prescribed, has the power to make an order providing for any one or more of the following—
(a) the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, any party to the proceedings but which is the subject matter of the proceedings or as to which any question arises in the proceedings;
(b) the taking of samples of any such property as is mentioned in paragraph (a) and the carrying out of any experiment on or with any such property.
(3) This section is without prejudice to the exercise by a magistrates’ court of any power to make orders which is exercisable apart from the provisions of this section.”

.
Section 68 was repealed by section 49(2) and 109(3) of and Schedule 10 to the Courts Act 2003.
13 In section 97, in subsections (1)(a) and (2) for “under the Adoption and Children Act 2002 (c 38)” substitute “in family proceedings”.
Subsection (1) was substituted by section 169(2) of the Serious Organised Crime and Police Act 2005 (c.15) and article 2 of S.I. 2005/3275 and subsection (1) was modified in relation to proceedings to deal with a contempt of court under section 18 of the Criminal Procedure and Investigations Act 1996 (c.25) by article 5 of the Magistrates’ Courts (Criminal Procedure and Investigations Act 1996) (Confidentiality) Rules 1997 (S.I. 1997/704).
14 In section 150 before the definition of “family proceedings” insert—

“Family Procedure Rules” has the meaning assigned by section 65A above;”

.
Section 150 was amended by section 33 of and paragraph 88 of Schedule 2 to and Schedule 4 to the Family Law Reform Act 1987 (c.42), section 92 of and paragraph 8 of Schedule 11 to the Children Act 1989 (c.41), section 125(3) of and paragraph 25 of Schedule 18 to the Courts and Legal Services Act 1990 (c.41), section 168(3) of and Schedule 11 to the Criminal Justice and Public Order Act 1994 (c.33), section 1(3) of and paragraph 11(4) of Schedule 2 to the Local Government (Wales) Act 1994 (c.19), articles 2 of and paragraph 2(7) of the Schedule to S.I. 1996/675, section 106 of and Part V Table (1) of Schedule 15 to the Access to Justice Act 1999 (c.22), sections 41, 331 and 332 of and paragraphs 51(i) and (ii) of Part 2 of Schedule 3 to and paragraphs 7 and 9 of Part 2 of Schedule 36 to and Part 4 of Schedule 37 to the Criminal Justice Act 2003 (c.44), section 109(1) and (3) of and paragraphs 250(1) to (3) of Schedule 8 to and Schedule 10 to the Courts Act 2003 (c.39), section 62(3) of and paragraphs 45, 63 (1) to (3) of Schedule 13 to the Tribunals, Courts and Enforcement Act 2007 (c.15) and section 208(1) of and paragraphs 42 and 44 of Schedule 21 to the Legal Services Act 2007 (c.29).

15 Amendment of the Sexual Offences Act 2003
In section 21(12) of the Sexual Offences Act 2003—
(a) at the end of paragraph (b) omit “or”;
(b) at the end of paragraph (c) insert “or”; and
(c) after paragraph (c) insert—

“(d) is appointed to be the children’s guardian of B under rule 59 of the Family Procedure (Adoption) Rules 2005 (S.I. 2005/2795) or rule 16.3(1)(ii) or rule 16.4 of the Family Procedure Rules 2010 (S.I. 2010/2955),”

.
2003 c.42. Section 21(12) was amended by section 40 of and paragraph 18 of Schedule 3 to the Children Act 2004 (c.31) and by articles 3, 6(1) and (8) of S.I. 2008/1779.

PART 4 AMENDMENTS TO SECONDARY LEGISLATION

16 Amendment of the Magistrates’ Courts Rules 1981
In the Magistrates’ Courts Rules 1981 in the heading to rule 3 and in rule 3—
(a) for “and” substitute “,”; and
(b) after “1991” the second time it appears, insert “and the Family Procedure Rules 2010.”.
S.I. 2010/2955.
S.I. 1981/552. Rule 3 was substituted by rule 26 of and paragraph 3(3) of Schedule 2 of S.I. 1991/1991.

Amendment of the Civil Procedure Rules 1998
17 The Civil Procedure Rules 1998 are amended as provided in articles 18 and 19.
S.I. 1998/3132. Rule 2.1 was amended by section 59(5) of and paragraph 1(2) of Part 1 of Schedule 11 to the Constitutional Reform Act 2005 and by S.I. 1999/1008, 2003/1242, 2005/3515 and 2007/ 2204. Rule 57.15 was amended by S.I. 2002/2058 and 2009/3390.
18 In the table following rule 2.1(2)—
(a) in entry 5 (Family proceedings), in the second column, omit the current words and substitute “Courts Act 2003, s.75”; and
(b) in entry 6 (Adoption proceedings), in the second column—
(i) omit “Adoption Act 1976, s.66 or”; and
Section 66 was repealed by section 139(3) of and Schedule 5 to the Adoption and Children Act 2002 (c.38).
(ii) after “s.141” insert “or Courts Act 2003, s.75”.
19 In rule 57.15(2), for “the Family Proceedings Rules 1991”, substitute “the Family Procedure Rules 2010”.
S.I.1991/1247.

20 Amendment of the Data Protection (Subject Access Modification) (Health) Order 2000
In article 4(2) of the Data Protection (Subject Access Modification) (Health) Order 2000—
(a) after “1997” for “or” substitute “,”; and
(b) after “1996” insert “or the Family Procedure Rules 2010”.
S.I. 2000/413.

Amendment of the Data Protection (Subject Access Modification) (Social Work) Order 2000
21 The Data Protection (Subject Access Modification) (Social Work) Order 2000 is amended as provided in articles 22 to 24.
S.I. 2000/415. Relevant amending instruments are S.I. 2002/2469 and 3220, 2004/696, 2005/467 and 3504.
22 In article 5(2)(a), for “(t) or (tt)” substitute “(t), (tt), (v) or (w)”.
23 In article 7(2), in section 7(12)(a) of the Data Protection Act 1998 as modified, for “(t) or (tt)” substitute “(t), (tt), (v) or (w)”.
24 In the Schedule—
(a) after paragraph 1(u) insert—

“(v) data processed by any children’s guardian appointed under rule 16.3(1)(i) or rule 16.4 of the Family Procedure Rules 2010;
(w) data processed by any officer of the Children and Family Court Advisory and Support Service or Welsh family proceedings officer for the purpose of the functions referred to in rule 16.33 (insofar as it applies to proceedings to which Part 12 of the Family Procedure Rules 2010 applies) or 16.38(1) of the Family Procedure Rules 2010.”

; and
(b) in paragraph 2—
(i) after “1996” for “or” substitute “,”; and
(ii) after “the Family Proceedings Rules 1991” insert “or the Family Procedure Rules 2010”.

25 Amendment of the Data Protection (Miscellaneous Subject Access Exemptions) Order 2000
In Part II of the Schedule to the Data Protection (Miscellaneous Subject Access Exemptions) Order 2000—
(a) at the end of paragraph (a) insert—

“In the Family Procedure Rules 2010: rules 14.6, 14.11, 14.12, 14.13, 14.14, 14.24, 16.20 (insofar as it applies to a children’s guardian appointed in proceedings to which Part 14 of those Rules applies), 16.32 and 16.33 (insofar as it applies to a children and family reporter in proceedings to which Part 14 of those Rules applies).”

; and
(b) at the end of paragraph (c) insert—

“Rules made under section 75 of the Courts Act 2003 by virtue of section 141(1) of the Adoption and Children Act 2002, as applied with modifications by regulation 2 of Schedule 1 to the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, so far as the rules relate to the appointment and duties of the parental order reporter and the keeping of registers, custody, inspection and disclosure of documents and information relating to parental order proceedings or related proceedings.”

.
Section 141(1) was amended by section 109(1) of and paragraphs 413(1) and (2) of Schedule 8 to the Courts Act 2003.
S.I. 2010/985.
S.I. 2000/419. Relevant amending instruments are S.I. 2005/3504 and 2010/986.

Amendment of the Divorce etc (Pensions) Regulations 2000
26 The Divorce etc (Pensions) Regulations 2000 are amended as provided in articles 27 and 28.
S.I. 2000/1123, amended by S.I. 2005/2114. S.I. 2006/1932 modifies the Divorce etc (Pensions) Regulations 2000 so that, in relation to a modified pension attachment order, they apply as if regulation 7A were inserted.
27 In regulation 2(d), for “Family Proceedings Rules 1991” substitute “Family Procedure Rules 2010”.
28 In regulation 4(3)(c), 6(2)(a) and (4), 7(3) and 7A(3), for “rule 2.70” substitute “rule 9.33 or 9.34”.

29 Amendment of the Litigants in Person (Costs and Expenses) (Magistrates’ Courts) Order 2001
In article 3 of the Litigants in Person (Costs and Expenses) (Magistrates’ Courts) Order 2001, after “1980” insert “or under section 75 of the Courts Act 2003”.
S.I. 2001/3438.

Amendment of the Dissolution etc (Pensions) Regulations 2005
30 The Dissolution etc (Pensions) Regulations 2005 are amended as provided in articles 31 and 32.
S.I. 2005/2920. These Regulations are modified by S.I. 2006/1934 so that, in relation to a modified pension attachment order, they apply as if regulation 7A were inserted.
31 In regulation 2(e) for “Family Proceedings Rules 1991” substitute “Family Procedure Rules 2010”.
32 In regulations 4(3)(c), 6(2)(a) and (4), 7(3) and 7A(3), for “rule 2.70” substitute “rule 9.33 or 9.34”.

33 Amendment of the Court of Protection Rules 2007
In rule 39 of the Court of Protection Rules 2007—
(a) in paragraph (1), for “The rules in Section 2 of Part 6 of the Family Procedure (Adoption) Rules 2005 (“the 2005 Rules”)”, substitute “The rules in Chapter 4 of Part 6 of the Family Procedure Rules 2010 (“the 2010 Rules”)”; and
(b) in paragraphs (2) and (3), for “2005” substitute “2010”.
S.I. 2007/1744.

Amendment of the Family Proceedings Fees Order 2008
34 The Family Proceedings Fees Order 2008 is amended as provided in articles 35 to 37.
S.I. 2008/1054. Relevant amending instruments are S.I. 2008/2856, 2009/1499 and 2010/1916. Amendments are also made by section 59(5) of and paragraph 1(2) of Part 1 of Schedule 11 to the Constitutional Reform Act 2005.
35 For article 1(2)(b), substitute—

“(b) “the FPR 2010” means the Family Procedure Rules 2010; and
(c) expressions also used in the FPR 2010 have the same meaning as in the FPR 2010.”

.
36 In column 1 of Schedule 1—
(a) for the description of fee 1.1 substitute—

“On filing an application to start proceedings, where no other fee is specified.”

;
(b) for the description of fee 1.2 substitute—

“On presenting any application for—
(a) a matrimonial or civil partnership order, other than an application to which rule 7.7(1)(b) of the FPR 2010 applies;
(b) a declaration to which Chapter 5 of Part 8 of the FPR 2010 applies.”

;
(c) for the description of fee 1.4 substitute—

“On amending an application for a matrimonial or civil partnership order, amending an application for a declaration to which Chapter 5 of Part 8 of the FPR 2010 applies, or making an application to which rule 7.7(1)(b) of the FPR 2010 applies.”

;
(d) for the description of fee 1.5 substitute—

“On filing an answer to an application for a matrimonial or civil partnership order.”

;
(e) for the description of fee 4.2 substitute—

“On an application under rule 7.19 of the FPR 2010 for the court to consider the making of a decree nisi, a conditional order, a decree of judicial separation or a separation order (other than in an undefended case where no fee is payable).”

;
(f) for the description of fee 4.4 substitute—

“On the filing of—
(a) a notice of intention to proceed with an application for a financial order to which rule 9.4(a) of the FPR 2010 applies; or
(b) an application for a financial order to which rule 9.4(b) of the FPR 2010 applies,
other than an application for a consent order.”

;
(g) in the description of fee 5.1, for “a notice of appeal” substitute “an appeal notice”;
(h) in the description of fee 10.1, after “enforcement of a judgment” insert “, or on an application to which rule 33.3(2)(b) of the FPR 2010 applies”; and
(i) in the description of fee 10.2, for “garnishee order” substitute “third party debt order”.
37 In paragraph 1(1) of Schedule 2, in the definition of “restraint order”—
(a) in paragraph (a) omit “or”;
(b) in paragraph (b), for “.” substitute “; or”; and
(c) after paragraph (b) insert—

“(c) a civil restraint order under rule 4.8 of the FPR 2010 or the practice direction referred to in that rule.”

.

38 Amendment of the Allocation and Transfer of Proceedings Order 2008
In article 15(1) of the Allocation and Transfer of Proceedings Order 2008, omit sub-paragraph (h).
S.I. 2008/2836.

PART 5 MISCELLANEOUS

39 Transitional provision
Where, by virtue of Part 36 of the Family Procedure Rules 2010, the Family Procedure Rules 2010 do not apply to a particular case, the enactments referred to in articles 2 to 14, 17 to 19, 26 to 28 and 30 to 38 shall apply as if the amendments made to those enactments by this Order had not been made.
Signed
Name Parliamentary Under Secretary of State Ministry of Justice Date

EXPLANATORY NOTE
(This note is not part of the Order)
The Family Procedure Rules 2010 (S.I. 2010/2955) (“the FPR”) provide a new code for the practice and procedure in family proceedings in the High Court, county courts and magistrates’ courts and supersede existing rules of court for family proceedings.
This Order provides for modifications and amendments to primary and secondary legislation in relation to provisions made in Family Procedure Rules.
Part 2 (Article 2) provides for modification of relevant enactments enabling certain new terminology adopted in the FPR to be applied to the existing statutory provisions, where appropriate.
Part 3 provides for amendments to primary legislation. In particular—
Article 3 amends the Courts Act 1971 (c. 23) to enable Part 28 of the FPR relating to costs to apply to all family proceedings where an application is not proceeded with;
Articles 5, 6(b) (in so far as it relates to the insertion of section 54(4) of the Magistrates’ Courts Act 1980 (c.43) (“the 1980 Act”)), 7 to 9, 11 and 14 amend the 1980 Act to provide for the procedure in Family Procedure Rules to apply to all family proceedings when appropriate;
Article 6(a) and (b) (in so far as it relates to the insertion of section 54(3) of the 1980 Act) makes provision for family proceedings in magistrates’ courts to be stayed;
Article 10 amends the 1980 Act to make provision for costs to be awarded in all family proceedings and so aligns magistrates’ courts’ powers to award costs in family proceedings with the powers of the High Court and county courts;
Article 12 amends the 1980 Act to make provision for discovery against a non-party in family proceedings;
Article 13 amends the 1980 Act to enable a justice of the peace, in family proceedings, to issue a witness summons;
Article 15 amends the Sexual Offences Act 2003 (c.42) to include provision in respect of a children’s guardian appointed under the FPR and the Family Procedure (Adoption) Rules 2005.
Part 4 provides for amendments to secondary legislation. In particular—
Articles 16 to 37 provide for amendments consequential upon Family Procedure Rules and the coming into force of section 75 of the Courts Act 2003 (c.39). Where enactments refer to rules of court, or particular provisions within rules of court, which are superseded by the FPR, references are inserted instead to the FPR, or the particular superseding provisions of the FPR. References to the superseded rules, or provisions, are omitted where appropriate;
Article 38 makes provision for a consequential amendment to article 15(1) of the Allocation and Transfer of Proceedings Order 2008 (S.I. 2008/2836). Article 15 of that Order deals with transfer of proceedings from magistrates’ courts to a county court and article 15(1) in particular sets out criteria the court considers when considering transfer. The amendment removes the reference to the exercise of the power to transfer where there is a real risk that a party to proceedings may lack mental capacity within the meaning of the Mental Capacity Act 2005 as the FPR now make provision (in Part 15) for protected parties in relation to all three levels of court including the magistrates’ courts.
Article 39 contains transitional provisions.