The Magistrates’ Courts (Enforcement or Variation of Orders Made in Family Proceedings and Miscellaneous Provisions) Rules 2011

Rule 68

SCHEDULE 4 1972 ACT: RULES OF PROCEDURE

Interpretation

1.  In this Schedule, and in any rule where this Schedule applies to proceedings pursuant to that rule, unless the context otherwise requires—

“business day” means any day other than—

(a)

a Saturday, Sunday, Christmas or Good Friday; or

(b)

a day which is a bank holiday under the Banking and Financial Dealings Act 1971(1), in England and Wales;

“directions appointment” means a hearing for directions under paragraph 4;

“file” means deposit with the designated officer for a magistrates’ court;

“note” includes a record made by mechanical or electronic means;

“permission” includes approval; and

“proceedings” means proceedings to which this Schedule applies, as provided in rule 68.

Transfer of proceedings

2.—(1) Where—

(a) any proceedings are relevant proceedings within the meaning of section 93 of the 1989 Act(2), and

(b) the justices’ clerk or the court receives a request in writing from the resident party that the proceedings be transferred to another magistrates’ court,

the designated officer or the court must issue a certificate in the appropriate form, granting or refusing the request in accordance with any Order made by the Lord Chancellor under Part 1 of Schedule 11 to the 1989 Act(3).

(2) Where a request is granted under paragraph (1), the designated officer must send a copy of the certificate to—

(a) the resident party;

(b) the Ministry of Justice; and

(c) the magistrates’ court to which the proceedings are to be transferred.

(3) Any consent given or refused by a justices’ clerk in accordance with any Order made by the Lord Chancellor under Part 1of Schedule 11 to the 1989 Act must be recorded in writing by the justices’ clerk at the time it is given or refused or as soon as practicable afterwards.

Service

3.—(1) Where service of a document is required by this Schedule or by a rule where this Schedule applies to proceedings pursuant to that rule, it may be effected, unless the contrary is indicated—

(a) if the person to be served is not known by the person serving to be acting by a legal representative—

(i) by delivering it to that person personally; or

(ii) by delivering it at, or by sending it by first-class post to, that person’s residence or last known residence; or

(b) if the person to be served is known by the person serving to be acting by a legal representative—

(i) by delivering the document at, or sending it by first-class post to, the legal representative’s address for service;

(ii) where the legal representative’s address for service includes a numbered box at a document exchange, by leaving the document at that document exchange or at a document exchange which transmits documents on every business day to that document exchange; or

(iii) by sending a legible copy of the document by facsimile transmission to the legal representative’s office.

(2) In this paragraph, “first-class post” means first-class post which has been pre-paid or in respect of which pre-payment is not required.

(3) Unless the contrary is proved, a document will be deemed to have been served—

(a) in the case of service by first-class post, on the second business day after posting, and

(b) in the case of service in accordance with sub-paragraph (1)(b)(ii), on the second business day after the day on which it is left at the document exchange.

(4) In any proceedings where this Schedule, or a rule where this Schedule applies, requires a document to be served, the court or the justices’ clerk may, without prejudice to any power under paragraph 4, direct that—

(a) the requirement will not apply;

(b) the time specified by the rules for complying with the requirement will be abridged to such extent as may be specified in the direction;

(c) service is to be effected in such manner as may be specified in the direction.

Directions

4.—(1) The court or the justices’ clerk may give, vary or revoke directions for the conduct of the proceedings, including—

(a) the timetable for the proceedings;

(b) varying the time within which or by which an act is required by this Schedule, or by a rule where this Schedule applies to proceedings pursuant to that rule, to be done;

(c) the service of documents; and

(d) the submission of evidence.

(2) Where the designated officer receives such an application or any document by which proceedings are commenced, the justices’ clerk must consider whether any directions need to be given under sub-paragraph (1).

(3) Where the justices’ clerk or a single justice who is holding a directions appointment considers, for whatever reason, that it is inappropriate to give a direction on a particular matter, the matter must be referred to the court, which may give any appropriate direction.

(4) Directions under sub-paragraph (1) may be given, varied or revoked—

(a) of the justices’ clerk’s or the court’s own motion, having given the resident party an opportunity to attend and be heard or to make written representations; or

(b) on the written request of either party, specifying the direction sought.

(5) Where the designated officer receives a request under sub-paragraph (4)(b), the justices’ clerk must—

(a) make the direction sought; or

(b) fix a date for a hearing to consider the request.

Timing of proceedings

5.—(1) Any period of time fixed by this Schedule, or by a rule where this Schedule applies to proceedings pursuant to that rule, or by any order or direction, for doing any act is to be reckoned in accordance with this rule.

(2) Where the period, being a period of seven days or fewer, would include a day which is not a business day, that day will be excluded.

(3) Where the time fixed for filing a document with the designated officer expires on a day on which the office of the designated officer is closed, and for that reason the document cannot be filed on that day, the document will be filed on time if it is filed on the next day on which the office of the designated officer is open.

(4) Where this Schedule, or a rule where this Schedule applies to proceedings pursuant to that rule, provides a period of time within which, or by which, a certain act is to be performed in the course of relevant proceedings, that period may not be extended otherwise than by a direction of the justices’ clerk or the court under paragraph 4(1) above.

(5) Sub-paragraphs (6) and (7) apply at the—

(a) transfer to a court of proceedings;

(b) postponement or adjournment of any hearing or directions appointment in the course of relevant proceedings; or

(c) conclusion of any such hearing or direction appointment other than one at which the proceedings are determined, or as soon as is practicable after that point.

(6) The justices’ clerk must fix a date on which the proceedings will come before the justices’ clerk or the court again for such purposes as the justices’ clerk or the court directs, which date will, where sub-paragraph (5)(a) applies, be as soon as possible after the transfer.

(7) The designated officer must give notice to the resident party of the date fixed in accordance with sub-paragraph (6).

Attendance at a directions appointment and a hearing

6.—(1) The resident party must attend a directions appointment of which that party has been given notice, unless the justices’ clerk or the court directs otherwise.

(2) Where at the time and place appointed for a hearing or directions appointment the resident party does not appear, the justices’ clerk or the court must not proceed with the hearing or appointment unless—

(a) the proceedings relate to an application filed by the resident party; or

(b) the court is satisfied that the resident party has received reasonable notice of the hearing or appointment.

(3) Where at the time and place appointed for a hearing or directions appointment the non-resident party does not appear, the court may proceed with the hearing or appointment where the proceedings relate to an order or application sent by the Lord Chancellor to the court under the 1972 Act.

(4) Nothing in this Schedule is to be taken as preventing either party from appearing at any hearing or directions appointment.

Documentary evidence

7.—(1) A party must file, at or by such time as the justices’ clerk or the court directs or, in the absence of a direction, before the hearing or directions appointment—

(a) written statements of the substance of the oral evidence which the party intends to adduce at a hearing or directions appointment, which must—

(i) be dated;

(ii) be signed by the person making the statement;

(iii) contain a declaration that the maker of the statement believes it to be true and understands that it may be placed before the court; and

(iv) show in the top right-hand corner of the first page—

(aa) the initials and surname of the person making the statement;

(bb) the number of the statement in relation to the maker;

(cc) the date on which the statement was made; and

(dd) the party on whose behalf it is filed; and

(b) copies of any documents on which the party intends to rely at a hearing or a directions appointment.

(2) Subject to any direction of the justices’ clerk or the court about the timing of statements under this paragraph, a party may file a statement which is supplementary to a statement filed under sub-paragraph (1).

(3) Where a non-resident party files a statement or document under this paragraph, that party must also file a copy of it for service on the resident party and, on receipt of that copy, the designated officer must serve it on the resident party.

(4) At a hearing or directions appointment a party may not without the permission of the justices’ clerk (in the case of a directions appointment) or the court—

(a) adduce evidence; or

(b) seek to rely on a document,

in respect of which the party has failed to comply with the requirements of sub-paragraph (1) and, where applicable, sub-paragraph (3).

Amendment

8.—(1) A party amending a document must file the amended document with the designated officer, and the amendments must be identified.

(2) Paragraph 7(3) applies to an amended document filed under this paragraph.

Oral evidence

9.  The justices’ clerk or the court must keep a note of the substance of any oral evidence given at a hearing or directions appointment.

Hearing

10.—(1) Before the hearing, the justice or justices who will be dealing with the case must read any documents which have been filed under paragraph 7 in respect of the hearing.

(2) The justices’ clerk at a directions appointment, or the court at a hearing or directions appointment, may give directions as to the order of speeches and evidence.

(3) After the final hearing, the court must make its decision as soon as is practicable.

(4) Before the court makes an order or refuses an application, the justices’ clerk must record in writing—

(a) the names of the justice or justices constituting the court by which the decision is made; and

(b) in consultation with the justice or justices, the reasons for the court’s decision and any findings of fact.

(5) As soon as is practicable after the court announces its decision, the justices’ clerk must make a record in writing of any order.

(6) Sub-paragraph (7) applies where, under section 7(4) of the Domestic Proceedings and Magistrates’ Courts Act 1978, a court decides to treat an application under section 7 as if it were an application for an order under section 2 of that Act(4).

(7) The court must indicate orally which of grounds (a) and (b) in that subsection it considers applicable and a memorandum of that decision and the grounds for it must be entered in the register.

Confidentiality of documents

11.—(1) No document, other than a record of an order, held by the court and relating to any proceedings may be disclosed, other than to—

(a) a party;

(b) the legal representative of a party;

(c) the Ministry of Justice; or

(d) the Legal Services Commission,

without the permission of the justices’ clerk or the court.

(1)

1971 c.80.

(2)

Section 93 was amended by section 116 of and paragraph 22 of Schedule 16 to the Courts and Legal Services Act 1990 and section 122(2) of the Adoption and Children Act 2002.

(3)

Part 1 of Schedule 11 was amended by section 45 of the Child Support Act 1991 (c.48), sections 83(5) and 85 of and paragraph 10 of Schedule 8 to Part 9 of Schedule 9 to the Child Support, Pensions and Social Security Act 2000, section 139(1) of and paragraphs 54 and 75 of Schedule 3 to the Adoption and Children Act 2002 and section 15(1) of and paragraphs 203 and 210 of Part 1 of Schedule 4 to the Constitutional Reform Act 2005.

(4)

Section 2 was amended by S.I. 1992/709 and by sections 15(1) and 146 of and paragraph 96 of Schedule 4 and Part 2 of Schedule 18 to the Constitutional Reform Act 2005.