The Magistrates' Courts (Miscellaneous Amendments) Rules (Northern Ireland) 2005

Statutory Rules of Northern Ireland

2005 No. 559

MAGISTRATES' COURTS

The Magistrates' Courts (Miscellaneous Amendments) Rules (Northern Ireland) 2005

Made

12th December 2005

Coming into operation

6th January 2006

The Lord Chancellor makes the following Rules in exercise of the powers conferred by Article 13 of the Magistrates' Courts (Northern Ireland) Order 1981(1), Article 165 of the Children (Northern Ireland) Order 1995(2) and all other powers enabling him in that behalf. In accordance with Article 13 of the Magistrates' Courts (Northern Ireland) Order 1981, he makes the Rules on the advice of the Magistrates' Courts Rules Committee and after consultation with the Lord Chief Justice.

PART I CITATION AND COMMENCEMENT

Citation and commencement

1.  These Rules may be cited as the Magistrates' Courts (Miscellaneous Amendments) Rules (Northern Ireland) 2005 and shall come into operation on 6th January 2006.

PART II AMENDMENT TO THE MAGISTRATES' COURTS (CHILDREN (NORTHERN IRELAND) ORDER 1995) RULES (NORTHERN IRELAND) 1996

2.  The Magistrates' Courts (Children (Northern Ireland) Order 1995) Rules (Northern Ireland) 1996(3) (“the Children Order Rules 1996”) are amended as follows.

3.  In rule 1 (Citation, commencement and interpretation), in paragraph (3)—

(a) after the definition of “business day” insert—

““the Central Authority for Northern Ireland” means the Northern Ireland Court Service;”;

(b) after the definition of “child” insert—

““the Council Regulation” means Council Regulation (EC) 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility;”; and

(c) after the definition of “leave” insert—

““Member State” means—

(a)

those parties contracting to the Council Regulation, that is to say, Belgium, Cyprus, Czech Republic, Germany, Greece, Spain, Estonia, France, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Austria, Poland, Portugal, Slovakia, Slovenia, Finland, Sweden and the United Kingdom; and

(b)

a party which has subsequently adopted the Council Regulation;”.

4.  In rule 4 (Application), in paragraph (1), after “Forms” insert “C1AA or”.

5.  In rule 5 (Ex parte application), in paragraph (2)(a), after “Forms” insert “C1AA or”.

6.  In rule 10 (Acknowledgement of application), after “Form C4” insert “and, if both parts of question 6 or question 7 (or both) on Form C4 are answered in the affirmative, Form C1AA.”.

7.  After rule 21, insert the following new rules—

“Application by a party for transfer of proceedings to a court of another Member State

21A.— (1) A party may make an application that proceedings, or a specific part of those proceedings, be heard in another Member State pursuant to Article 15 of the Council Regulation.

(2) An application under paragraph (1) shall be made—

(a) to the court in which the relevant parental responsibility proceedings (within the meaning of the Council Regulation) are pending; and

(b) in Form C1 or C2 as appropriate; and

(c) where the application is made in Form C2 it shall be filed and served on the respondents not less than 5 business days before the hearing of the application.

(3) An application under paragraph (1) shall be supported by a written statement, which shall contain evidence of the child’s particular connection to the other Member State in accordance with Article 15(3) of the Council Regulation.

(4) The respondents referred to in paragraph (2)(c) are any other parties, the child and the Central Authority of the relevant Member State.

(5) In this rule references to “the child” are references to the child who is the subject of the parental responsibility proceedings.

Application by a court of another Member State for transfer of proceedings

21B.— (1) A court of another Member State may make an application that proceedings, or a specific part of those proceedings, be heard in that Member State pursuant to Article 15 of the Council Regulation.

(2) An application under paragraph (1) shall be made in the first instance to the Central Authority of Northern Ireland.

(3) The Central Authority of Northern Ireland shall forward an application made under paragraph (1) to the court in which the parental responsibility proceedings are pending.

(4) Upon receipt of such an application the clerk of petty sessions shall serve a copy of the application on all other parties in Northern Ireland not less than 5 business days before the hearing of the application.

(5) A decision to accept or refuse jurisdiction under Article 15 of the Council Regulation shall be served on all parties, the Central Authority of the relevant Member State and the Central Authority of Northern Ireland. Service on a Central Authority of another Member State shall be made by the Central Authority for Northern Ireland.

A certified copy of a judgment or a certificate for enforcement in other Member State

21C.— (1) An application for a certified copy of a judgment or certificate referred to in Article 39 or 41 of the Council Regulation shall be made to the court which made the order by written statement without notice being served on any other party.

(2) A written statement by which an application for a certified copy of a judgment is made shall—

(a) give particulars of the proceedings in which the judgment was obtained;

(b) have annexed to it—

(i) a copy of the application by which the proceedings were begun;

(ii) evidence of service on the respondent;

(iii) copies of the documents filed in the proceedings, if any; and

(iv) a statement of the grounds on which the judgment was based together, where appropriate, with any document showing that the applicant is entitled to legal aid or assistance by way of representation for the purposes of the proceedings;

(c) state whether or not the respondent did or did not object to the jurisdiction, and if so, on what grounds;

(d) show that the judgment has been served in accordance with rule 9 and is not subject to any order for the stay of proceedings;

(e) state that the time for appealing has expired, or, as the case may be, the date on which it will expire and in either case whether notice of appeal against the judgment has been given; and

(f) state—

(i) whether the judgment provides for the payment of a sum of money;

(ii) whether interest is recoverable on the judgment or part thereof and if so, the rate of interest, the date from which interest is recoverable, and the date on which interest ceases to accrue.

(3) A written statement by which an application for a certificate is made shall give—

(a) particulars of the proceedings in which the judgment was obtained;

(b) the full name, county and the date and place of birth of the parties;

(c) details of the type of certificate applied for and the reasons for making the application; and

(d) where the application is for a certificate under Annex II to the Council Regulation—

(i) the full name and, if known, the address and the date and place of birth of any other persons with parental responsibility;

(ii) information as to whether or not the judgment entails the return of a child wrongfully removed or retained in another Member State and, if so, the full name and address of the person to whom the child should be returned.

(4) The certified copy of the judgment shall be an office copy signed by the resident magistrate and there shall be issued with a copy of the judgment a certified copy of any order which has varied any of the terms of the original order.

Rectification of certificates issued under Article 41

21D.— (1) The court may rectify an error in a certificate issued under Article 41.

(2) The court may rectify the certificate of its own motion or pursuant to an application made by any party to the proceedings, or the court or Central Authority or another Member State.”.

8.  In Schedule 1 (Forms)—

(a) in Form C1 (Application for an order)—

(i) before paragraph 1 insert the following note—

“Important Note: you should only answer question 6A if you are asking the court to make an Article 8 order.”;

(ii) after paragraph 6 insert the following new paragraph—

“

”; and

(iii) in paragraph 9—

(aa) for “mother and father” substitute “parents”; and

(bb) after “married to each other” insert “or civil partners of each other”;

(b) after Form C1 insert the new Form C1AA set out in Schedule 1 to these Rules;

(c) in Form C2 (Application)—

(i) before paragraph 1 insert the following note—

“Important Note: you should only answer question 3A if you are asking the court to make an Article 8 order.”; and

(ii) after paragraph 3 insert the following new paragraph—

“

”;

(d) for Form C4 (Acknowledgement) substitute the new Form C4 set out in Schedule 2 to these Rules;

(e) in Form C7A (Statement of Means)—

(i) in paragraph 1, after “married” insert “in a civil partnership,”; and

(ii) in paragraph 2, after “spouse” insert “civil partner,”; and

(f) in Form C39 for “Article 7” substitute “Article [7(1)][7(1A)]”.

9.  In Schedule 2 (Notices and Respondents), in the entry relating to Article 7(1)(a), 7(4), 8 etc. for “7(1)(a)” substitute “7(1)(c), 7(1A)”.

PART III AMENDMENT TO THE MAGISTRATES' COURTS (DOMESTIC PROCEEDINGS) RULES (NORTHERN IRELAND) 1996

10.  The Magistrates' Courts (Domestic Proceedings) Rules (Northern Ireland) 1996(4) (“the Domestic Proceedings Rules 1996”) are amended as follows.

11.  In rule 1 (Citation, commencement and interpretation), in paragraph (2)—

(a) for “(aaa)” substitute “(ab)”; and

(b) after that sub-paragraph insert—

“(ac) “the Act of 2004” means the Civil Partnership Act 2004;”.

12.  In rule 3 (Application under Article 4)—

(a) in the heading, after “Article 4” insert “of the Order or Part 1 of Schedule 16 to the Act of 2004”;

(b) in paragraph (1), after “Article 4” insert “of the Order or Part 1 of Schedule 16 to the Act of 2004”;

(c) after paragraph (2) insert—

“(2A) Where an application under paragraph 1(c) of Schedule 16 to the Act of 2004 alleges such behaviour by the respondent that the applicant cannot reasonably be expected to live with the respondent, particulars of the alleged behaviour shall not be stated in the summons, but, where the respondent or his solicitor, in writing, requests any such particulars, the applicant shall forthwith furnish particulars, in writing to the respondent or his solicitor and to the clerk of petty sessions.”; and

(d) in paragraph (3), after “Form D1” insert “or Form D1A, as the case may be,”.

13.  In rule 4 (Application for order under Article 8 (orders for payments agreed by parties))—

(a) in the heading, after “Article 8” insert “of the Order or Part 2 of Schedule 16 to the Act of 2004”;

(b) in paragraph (1), after “Article 8” insert “of the Order or Part 2 of Schedule 16 to the Act of 2004”;

(c) in paragraph (3), after “Article 8(9)(a) and (b)” insert “of the Order or paragraph 11(2)(a) and (b) of Schedule 16 to the Act of 2004”;

(d) in paragraph (4), after “Article 8(9)(c)” insert “of the Order or paragraph 11(2)(c) of Schedule 16 to the Act of 2004; and

(e) in paragraph (6), after “Article 8(9)” insert “of the Order or paragraph 11 of Schedule 16 to the Act of 2004”.

14.  In rule 5 (Application for order under Article 9 (orders for payments where parties are living apart by agreement))—

(a) in the heading, after “Article 9” insert “of the Order or Part 3 of Schedule 16 to the Act of 2004”;

(b) in paragraph (1), after “Article 9” insert “of the Order or Part 3 of Schedule 16 to the Act of 2004”; and

(c) after paragraph (3) insert—

“(3A) Where under paragraph 18 of Schedule 16 to the Act of 2004 the court decides to treat such an application as if it were an application under Part 1 of that Schedule the court shall state which of grounds (a) or (b) of sub-paragraph (1) of that paragraph is considered applicable and a note of the decision and the grounds therefore shall be entered in the Order Book.”.

15.  In rule 6 (Lodgement of birth certificate)—

(a) after “Articles 4, 8 or 9” insert “of the Order or under Parts 1, 2 or 3 of Schedule 16 to the Act of 2004”;

(b) omit “such”;

(c) after “Article 22” insert “of the Order or paragraph 30 of Schedule 16 to the Act of 2004”;

(d) for “review” substitute “revival”; and

(e) after “Article 22B” insert “of the Order or paragraph 30 of Schedule 16 to the Act of 2004”.

16.  In rule 8 (Form of Order), in paragraph (1), after “Articles 4, 8 or 9” insert “of the Order or Parts 1, 2 or 3 of Schedule 16 to the Act of 2004”.

17.  In rule 8A (Variation of means of payment order), after “Article 86(4) of the 1981 Order” insert “or paragraph 36(1) of Schedule 16 to the Act of 2004”.

18.  In rule 9 (Notice of court’s powers under the Children (Northern Ireland) Order 1995)—

(a) after “Articles 4, 8 or 9” insert “of the Order or Parts 1, 2 or 3 of Schedule 16 to the Act of 2004”; and

(b) after “marriage” insert “or civil partnership”.

19.  In rule 15 (Transfer of proceedings for order under Article 4, 8, 9 or 18)—

(a) in the heading, after “Articles 4, 8, 9 or 18” insert “of the Order or Parts 1, 2 or 3 of Schedule 16 to the Act of 2004”;

(b) after paragraph (1) insert—

“(1A) Where an application is made for an order under Parts 1, 2 or 3 of Schedule 16 to the Act of 2004 and as a consequence a summons is issued, then, on an application made by the respondent in accordance with paragraph (2) the court may, if it appears that the case could more conveniently be heard in another court of summary jurisdiction having jurisdiction to hear it by virtue of Article 32(1) of the Order, as applied to those proceedings by paragraph 46 of Schedule 16 to the Act of 2004, determine that the proceedings shall be removed to that other court.”;

(c) in paragraph (2), after “paragraph (1)” insert “or (1A)”; and

(d) in paragraph (4), after “paragraph (1)” insert “or (1A)”.

20.  In rule 16 (Entries in the Order Book)—

(a) in paragraph (1), after “Article 24” insert “of the Order or paragraph 41 of Schedule 16 to the Act of 2004”; and

(b) in paragraph (2), after “Article 30(1)” insert “of the Order or a civil partnership proceedings county court under Article 30(1) of the Order as applied by paragraph 46 of Schedule 16 to the Act of 2004”.

21.  In Schedule 1 (Forms)—

(a) after Form D1 insert the new Form D1A set out in Schedule 3 to these Rules;

(b) in Form D2 (Summons to Respondent on application for order for payments agreed by parties)—

(i) for “DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980 (Article 8: Rule 4(2))” substitute—

• “[DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980

• (Article 8: Rule 4(2))]

• [CIVIL PARTNERSHIP ACT 2004

• (Part 2 of Schedule 16: Rule 4(2))]*”; and

(ii) for “Article 8 of the above-mentioned Order” substitute “[Article 8 of the above-mentioned Order] [Part 2 of Schedule 16 to the above-mentioned Act]*”;

(c) In Form D3 (Respondent’s consent to Article 8 order and statement of financial resources)—

(i) for “DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980 (Article 8(9): Rule 4(3))” substitute—

• “[DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980

• (Article 8(9): Rule 4(3))]

• [CIVIL PARTNERSHIP ACT 2004

• (Part 2 of Schedule 16: Rule 4(3))]*”;

(ii) in the title, for “Article 8 order” substitute “[Article 8 order] [Part 2 order]*”; and

(iii) for “Article 8 of the above-mentioned Order” substitute “[Article 8 of the above-mentioned Order] [Part 2 of Schedule 16 to the above-mentioned Act]*”;

(d) in Form D3A (Declaration of Financial Resources of Child), for “DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980 (Article 8(9): Rule 4(4))” substitute—

• “[DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980

• (Article 8(9): Rule 4(4))]

• [CIVIL PARTNERSHIP ACT 2004

• (Paragraph 11 of Schedule 16: Rule 4(4))]*”;

(e) in Form D4 (Summons to Respondent on application for order for payments where parties are living apart by agreement)—

(i) for “DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980 (Article 9: Rule 5(2))” substitute—

• “[DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980

• (Article 9: Rule 5(2))]

• [CIVIL PARTNERSHIP ACT 2004

• (Part 3 of Schedule 16: Rule 5(2))]*”; and

(ii) for “Article 9 of the above Order” substitute “[Article 9 of the above Order] [Part 3 of Schedule 16 to the above Act]*”;

(f) in Form D5 (Notice to Respondent of decision to treat application for order under Article 9 as application for order under Article 4)—

(i) for “DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980 (Article 9: Rule 5(4))” substitute—

• “[DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980

• (Article 9: Rule 5(4))]

• [CIVIL PARTNERSHIP ACT 2004

• (Paragraph 18 of Schedule 16: Rule 5(4))]*”;

(ii) in the title, for “Article 9 as application for order under Article 4” substitute “[Article 9 as application for order under Article 4] [Part 3 of Schedule 16 to the Act of 2004 as application for order under Part 1 of Schedule 16]*”;

(iii) for “Article 9 of the above-mentioned Order” substitute “[Article 9 of the above-mentioned Order] [Part 3 of Schedule 16 to the above-mentioned Act]*”;

(iv) for “Article 9(4)” substitute “[Article 9(4)] [Paragraph 18 of Schedule 16 to the Act of 2004]*”;

(v) for “Article 4” substitute “[Article 4] [Part 1 of Schedule 16 to the Act of 2004]*”; and

(vi) for “Article 9” substitute “[Article 9] [Paragraph 18 of Schedule 16 to the Act of 2004]*”;

(g) in Form D6 (Order for financial provision)—

(i) for “DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980 (Articles 4, 8 and 9: Rule 8(1))” substitute—

• “[DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980

• (Articles 4, 8 and 9: Rule 8(1))]

• [CIVIL PARTNERSHIP ACT 2004

• (Parts 1, 2 and 3 of Schedule 16: Rule 8(1))]*”; and

(ii) for “Article [4] [8] [9] of the above-mentioned Order” substitute “[Article [4] [8] [9] of the above-mentioned Order] [Part [1] [2] [3] of Schedule 16 to the above-mentioned Act]*”;

(h) in Form D7 (Notice of courts powers with respect to children under the Children (Northern Ireland) Order 1995)—

(i) for “DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980 (Article 10: Rule 9)” substitute—

• “[DOMESTIC PROCEEDINGS (NORTHERN IRELAND) ORDER 1980

• (Article 10: Rule 9)]

• [CIVIL PARTNERSHIP ACT 2004

• (Paragraph 45 of Schedule 16: Rule 9)]*”; and

(ii) for “Domestic Proceedings (Northern Ireland) Order 1980 substitute “[Domestic Proceedings (Northern Ireland) Order 1980] [Civil Partnership Act 2004]*”; and

(iii) at the end insert “*Delete whichever is inappropriate”.

(i) for Form F1 (Application for a non-molestation order/an occupation order) substitute the new Form F1 set out in Schedule 4 to these Rules;

(j) in Form F2 (Summons to Respondent on an application under the Family Homes and Domestic Violence (Northern Ireland) Order 1998), in note 4—

(i) for “box 1, 4 or 5” substitute “box 1, 4, 5 or 6”;

(ii) for “the length of time that has elapsed since the marriage was dissolved or annulled” substitute—

• “where you and the applicant were married, the length of time that has elapsed since the marriage was dissolved or annulled

• where you and the applicant were civil partners, the length of time that has elapsed since the dissolution or annulment of the civil partnership”;

(iii) after “divorce proceedings etc.)” insert “or under Part 2 of Schedule 15 to the Civil Partnership Act 2004 (Property adjustment on or after dissolution, nullity or separation)”; and

(iv) after “husband and wife” insert “or civil partners”; and

(k) in Form F3 (Notice to Mortgagees and Landlords), omit “matrimonial” in each place it appears.

PART IV TRANSITIONAL PROVISION

Transitional Provision

22.—(1) Where proceedings have been commenced before the date on which these Rules come into operation, the Children Order Rules 1996 and the Domestic Proceedings Rules 1996 shall apply to those proceedings as if these Rules had not been made.

(2) Notwithstanding paragraph (1), in proceedings commenced before these Rules come into operation, where the Children Order Rules 1996 and the Domestic Proceedings Rules 1996 require the use of any form, that form may be used in those proceedings as amended or substituted by these Rules.

Signed by the authority of the Lord Chancellor

Bridget Prentice

Parliamentary Under-Secretary of State,

Department for Constitutional Affairs

Dated 12th December 2005

Rule 8(b)

SCHEDULE 1 FORM TO BE INSERTED IN THE MAGISTRATES' COURTS (CHILDREN (NORTHERN IRELAND) ORDER 1995) RULES (NORTHERN IRELAND) 1996

“FORM C1AA SUPPLEMENTAL INFORMATION FORM

”

Rule 8(d)

SCHEDULE 2 FORM TO BE SUBSTITUTED IN THE MAGISTRATES' COURTS (CHILDREN (NORTHERN IRELAND) ORDER 1995) RULES (NORTHERN IRELAND) 1996

“FORM C4 ACKNOWLEDGEMENT

”

Rule 21(a)

SCHEDULE 3 FORM TO BE INSERTED IN SCHEDULE 1 TO THE MAGISTRATES' COURTS (DOMESTIC PROCEEDINGS) RULES (NORTHERN IRELAND) 1996

“FORM D1A Civil Partnership Act 2004(Part 1 of Schedule 16: Rule 3(3))

”

Rule 21(i)

SCHEDULE 4 FORM TO BE SUBSTITUTED IN THE MAGISTRATES' COURTS (DOMESTIC PROCEEDINGS) RULES (NORTHERN IRELAND) 1996

“FORM F1

”

Explanatory Note

(This note is not part of the Rules.)

These Rules make amendments to two sets of rules, which apply in proceedings in magistrates' courts, in consequence of the Civil Partnership Act 2004 (c. 33). The Civil Partnership Act 2004 introduces a statutory civil registration procedure to allow same-sex couples to make a formal, legal commitment to each other by entering into a civil partnership. The Rules amend the Magistrates' Courts (Domestic Proceedings) Rules (Northern Ireland) 1996 to prescribe the procedures for proceedings under Schedule 16 to the 2004 Act. They also make minor consequential amendments to forms prescribed in the Magistrates' Courts (Children (Northern Ireland) Order 1995) Rules (Northern Ireland) 1996.

The Magistrates' Courts (Children (Northern Ireland) Order 1995) Rules (Northern Ireland) 1996 are also amended in consequence of Council Regulation (EC) No. 2201/2003 of 27th November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the new Council Regulation”). The new Council Regulation reproduced and repealed Council Regulation (EC) 1347/2000 extending it to include matters of parental responsibility where there are no matrimonial proceedings. The amendments insert new definitions relevant to the new Council Regulation, including a definition of “Member State”, which gives a list of the Member States who have signed up to the new Council Regulation so as to save cross-reference to other documents. They also make provision to prescribe the procedure for applications pursuant to Article 15 of the new Council Regulation, and in relation to applications for certified copies of judgments or for a certificate under Article 39 or 41 of the new Council Regulation.

The Rules also amend the Magistrates' Courts (Children (Northern Ireland) Order 1995) Rules (Northern Ireland) 1996 consequential to amendments made to Article 7 (acquisition of parental responsibility) of the Children (Northern Ireland) Order 1995 by section 1 of the Family Law Act (Northern Ireland) 2001 and amend the prescribed forms to ensure that allegations of domestic violence are raised at the commencement of proceedings under Article 8 of the Children (Northern Ireland) Order 1995.

The Notes for Guidance in Form F1 of the Magistrates' Courts (Domestic Proceedings) Rules (Northern Ireland) 1996 are also amended in consequence of the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2005. The 2005 Order amended the definitions of the terms “relative” and “cohabitee” in the Family Homes and Domestic Violence (Northern Ireland) Order 1998; so as to allow exclusion zones of defined areas to be attached to non-molestation orders and to make it clear that protective orders made ex-parte can only be made for a short period and that, if a court makes such an order, it must specify a date for a full hearing.

(1)

S.I. 1981 No. 1675 (N.I. 26)

(2)

S.I. 1995 No. 755 (N.I. 2)

(3)

S.R. 1996 No. 323 as amended by S.R. 1999 No. 63 and S.R. 1999 No. 223

(4)

S.R. 1996 No. 324 as amended by S.R. 1997 No. 538, S.R. 1999 No. 62 and S.R. 2000 No. 300