The Family Proceedings (Amendment) Rules 2000

Amendments to the Family Proceedings Rules 1991

10.  After rule 10.25 there shall be inserted the following:—

“Human Rights Act 1998

10.26— (1) In this rule:—

“originating document” means a petition, application, originating application, originating summons or other originating process;

“answer” means an answer or other document filed or served by a party in reply to an originating document (but not an acknowledgement of service);

“Convention right” has the same meaning as in the Human Rights Act 1998(1);

“declaration of incompatibility” means a declaration of incompatibility under section 4 of the Human Rights Act 1998.

(2) A party who seeks to rely on any provision of or right arising under the Human Rights Act 1998 or seeks a remedy available under that Act—

(a) shall state that fact in his originating document or (as the case may be) answer; and

(b) shall in his originating document or (as the case may be) answer:—

(i) give precise details of the Convention right which it is alleged has been infringed and details of the alleged infringement:

(ii) specify the relief sought;

(iii) state if the relief sought includes a declaration of incompatibility.

(3) A party who seeks to amend his originating document or (as the case may be) answer to include the matters referred to in paragraph (2) shall, unless the court orders otherwise, do so as soon as possible and in any event not less than 28 days before the hearing.

(4) The court shall not make a declaration of incompatibility unless 21 days' notice, or such other period of notice as the court directs, has been given to the Crown.

(5) Where notice has been given to the Crown a Minister, or other person permitted by the Human Rights Act 1998, shall be joined as a party on giving notice to the court.

(6) Where a party has included in his originating document or (as the case may be) answer:

(a) a claim for a declaration of incompatibility, or

(b) an issue for the court to decide which may lead to the court considering making a declaration of incompatibility,

then the court may at any time consider whether notice should be given to the Crown as required by the Human Rights Act 1998 and give directions for the content and service of the notice.

(7) In the case of an appeal for which permission to appeal is required, the court shall, unless it decides that it is appropriate to do so at another stage in the proceedings, consider the issues and give the directions referred to in paragraph (6) when deciding whether to give such permission.

(8) If paragraph (7) does not apply, and a hearing for directions would, but for this rule, be held, the court shall, unless it decides that it is appropriate to do so at another stage in the proceedings, consider the issues and give the directions referred to in paragraph (6) at the hearing for directions.

(9) If neither paragraph (7) nor paragraph (8) applies, the court shall consider the issues and give the directions referred to in paragraph (6) when it considers it appropriate to do so, and may fix a hearing for this purpose.

(10) Where a party amends his originating document or (as the case may be) answer to include any matter referred to in paragraph (6)(a), then the court will consider whether notice should be given to the Crown and give directions for the content and service of the notice.

(11) In paragraphs (12) to (16), “notice” means the notice given under paragraph (4).

(12) The notice shall be served on the person named in the list published under section 17 of the Crown Proceedings Act 1947.

(13) The notice shall be in the form directed by the court.

(14) Unless the court orders otherwise, the notice shall be accompanied by the directions given by the court and the originating document and any answers in the proceedings.

(15) Copies of the notice shall be served on all the parties.

(16) The court may require the parties to assist in the preparation of the notice.

(17) Unless the court orders otherwise, the Minister or other person permitted by the Human Rights Act 1998 to be joined as a party shall, if he wishes to be joined, give notice of his intention to be joined as a party to the court and every other party, and where the Minister has nominated a person to be joined as a party the notice must be accompanied by the written nomination.

(18) Where a claim is made under section 9(3) of the Human Rights Act 1998 in respect of a judicial act the procedure in paragraphs (6) to (17) shall also apply, but the notice to be given to the Crown:

(a) shall be given to the Lord Chancellor and shall be served on the Treasury Solicitor on his behalf; and

(b) shall also give details of the judicial act which is the subject of the claim and of the court that made it.

(19) Where in any appeal a claim is made in respect of a judicial act to which sections 9(3) and (4) of that Act applies—

(a) that claim must be set out in the notice of appeal; and

(b) notice must be given to the Crown in accordance with paragraph (18).

(20) The appellant must in a notice of appeal to which paragraph (19)(a) applies—

(a) state that a claim is being made under section 9(3) of the Human Rights Act 1998; and

(b) give details of—

(i) the Convention right which it is alleged has been infringed;

(ii) the infringement;

(iii) the judicial act complained of; and

(iv) the court which made it.

(21) Where paragraph (19) applies and the appropriate person (as defined in section 9(5) of the Human Rights Act 1998) has not applied within 21 days, or such other period as the court directs, after the notice is served to be joined as a party, the court may join the appropriate person as a party.

(22) On any application or appeal concerning—

(a) a committal order;

(b) a refusal to grant habeas corpus; or

(c) a secure accommodation order made under section 25 of the Act of 1989,

if the court ordering the release of the person concludes that his Convention rights have been infringed by the making of the order to which the application or appeal relates, the judgment or order should so state, but if the court does not do so, that failure will not prevent another court from deciding the matter.”.

(1)

1998 c. 42.