The Family Proceedings Courts (Children Act 1989) (Amendment) Rules 2008

Statutory Instruments

2008 No. 2858 L.23

Magistrates’ Courts, England And Wales

The Family Proceedings Courts (Children Act 1989) (Amendment) Rules 2008

Made

3rd November 2008

Laid before Parliament

6th November 2008

Coming into force

8th December 2008

The Lord Chief Justice with the concurrence of the Lord Chancellor, after having consulted the rule committee appointed under section 144(A1) of the Magistrates’ Courts Act 1980(1), makes the following Rules in exercise of the powers conferred by section 144 of the Magistrates’ Courts Act 1980:

Citation and commencement

1.  These Rules may be cited as the Family Proceedings Courts (Children Act 1989) (Amendment) Rules 2008 and shall come into force on 8th December 2008.

Amendments to the Family Proceedings Courts (Children Act 1989) Rules 1991

2.  The Family Proceedings Courts (Children Act 1989) Rules 1991(2) shall be amended in accordance with the provisions of rules 3 to 13.

3.  In the Arrangement of Rules, in the entry for rule 11AA, omit “family assistance order”.

4.  In rule 1(2) after the definition of “children’s guardian”, insert—

““contact activity condition” has the meaning assigned to it by section 11C(2);

“contact activity direction” has the meaning assigned to it by section 11A(3);

“contact order” has the meaning assigned to it by section 8(1);”.

5.  In rule 4(1A)(a)—

(a) in sub-paragraph (i), after “C1,”, insert “C100,”;

(b) in sub-paragraph (iii), after “C1”, insert “or (as the case may be) question 5 on Form C100”.

6.  In rule 5—

(a) in paragraph (3)—

(i) for “or” the first time it appears, substitute “,”;

(ii) for “or” the second time it appears, substitute “, the”;

(iii) after “children and family reporter” insert “or the officer of the service or the Welsh family proceedings officer who is acting or has acted under a duty referred to in rule 11AA(1)(a) to (e)”; and

(b) in paragraph (4)(a) and (b) for “preparing or has prepared a family assistance order report or a risk assessment” substitute “acting or has acted under a duty referred to in rule 11AA(1)(a) to (e)”.

7.  In rule 11(1)—

(a) omit “section 16(6), section 16A”; and

(b) after “section 41(2)” insert “or in acting under a duty referred to in rule 11AA(1)”.

8.  In rule 11AA—

(a) in the heading, omit “family assistance order”;

(b) for paragraph (1), substitute—

“(1) This rule applies where an officer of the service or a Welsh family proceedings officer is acting under a duty in accordance with —

(a) section 11E(7) (providing the court with information as to the making of a contact activity direction or a contact activity condition);

(b) section 11G(2) (monitoring compliance with a contact activity direction or a contact activity condition);

(c) section 11H(2) (monitoring compliance with a contact order);

(d) section 16(6) (providing a family assistance order report to the court); and

(e) section 16A (making a risk assessment).”;

(c) in paragraph (2)—

(i) for “preparing a family assistance order report or a risk assessment” substitute “acting under a duty referred to in paragraph (1)(a) to (e)”;

(ii) in sub-paragraph (a), for “the report or assessment” substitute “any report or risk assessment he makes”; and

(iii) in sub-paragraph (b), for “the report or assessment” the first time it appears, substitute “any report or risk assessment he makes”;

(d) in paragraphs (3) and (6), for “the report or assessment” substitute “any report or risk assessment he makes”;

(e) in paragraph (8), for “a family assistance order report” substitute “a report as a result of acting under a duty referred to in paragraph (1)(a) to (d)”; and

(f) in paragraph (9), for “a family assistance order report or risk assessment” substitute “a report or assessment prepared as a result of acting under a duty referred to in paragraph (1)(a) to (e)”.

9.  In rule 14—

(a) in paragraph (1)(b)—

(i) for “a family assistance order report” substitute “a duty referred to in rule 11AA(1)(a) to (d)”; and

(ii) for “preparing the report” substitute “acting under the duty in question”;

(b) in paragraph (2), after sub-paragraph (m) insert—

“(n) the exercise by an officer of the service or a Welsh family proceedings officer of any duty referred to in rule 11AA(1)(a) to (c).”; and

(c) in paragraph (11A), for “a family assistance order report or a risk assessment” substitute “a report or assessment prepared as a result of acting under a duty referred to in rule 11AA(1)(a) to (e)”.

10.  In rule 15(5)(c)(ii), for “preparing or has prepared a family assistance order report or a risk assessment” substitute “acting or has acted under a duty referred to in rule 11AA(1)(a) to (e)”.

11.  In rule 16, after paragraph (1) insert—

“(1A) Paragraphs (2) to (4) do not apply where—

(a) the hearing relates to a decision about whether to make a contact activity direction or to attach a contact activity condition to a contact order; and

(b) the court has yet to obtain sufficient evidence from, or in relation to, the person who may be the subject of the direction or condition to enable it to determine the matter.”.

12.  In rule 17(1), for “preparing or has prepared a family assistance order report or a risk assessment” substitute “acting or has acted under a duty referred to in rule 11AA(1)(a) to (e)”.

13.  In Schedule 1—

(a) in the list of forms—

(i) in the entry for Form C1, in the third column, for “for an order”, substitute “Children Act 1989 except section 8 orders and orders related to enforcement of a contact order”; and

(ii) after the entry for Form C1, in the first column insert “C100”, in the second column “Application”, and in the third column “under the Children Act 1989 for a residence, contact or other section 8 order”;

(b) for Forms C1 and C7, substitute the forms set out in Schedule 1;

(c) after Form C1, insert Form C100 set out in Schedule 2.

(d) in Form C42 (family assistance order), in paragraph (b) of the section that begins “Where” omit “who has been”; and

(e) in Form C43 (order)—

(i) immediately after the section headed “The Court orders” insert—

“Where—

(a) there are no proceedings pending under Part 2 Children Act 1989;

(b) an officer of the service or Welsh family proceedings officer who remains involved with the case is given cause to suspect, whilst this order is in force, that the child concerned is at risk of harm; and

(c) as a result that officer makes a risk assessment under section 16A of that Act,

the officer may apply to the court for it to revive the previous proceedings and to consider that risk assessment and give such directions as the court thinks necessary.”; and

(ii) in the section headed “Warning” after “without the leave of the Court”, insert—

“Where a contact order is in force: if you do not comply with this contact order–

(a) you may be committed to prison or fined; and/or

(b) the Court may make an order requiring you to undertake unpaid work (“an enforcement order”) and/or an order that you pay financial compensation.”.

Transitional provision

14.  Where proceedings have been commenced before rule 5 comes into force, the Family Proceedings Courts (Children Act 1989) Rules 1991 shall apply to those proceedings as if rules 5 and 13(a), (b) and (c) had not been made.

Lord Judge, C.J.

I concur

Bridget Prentice

Parliamentary Under Secretary of State

Ministry of Justice

3rd November 2008

Rule 13(b)

SCHEDULE 1

Rule 13(c)

SCHEDULE 2

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules amend the Family Proceedings Courts (Children Act 1989) Rules 1991 (“the 1991 Rules”).

Rules 3, 4, 6 to 12 and 13(d) and (e) amend the 1991 Rules in relation to the coming into force of sections 1 to 3 of the Children and Adoption Act 2006 (c.20), which amend the Children Act 1989 (c.41) (“the 1989 Act”).

Rule 4 amends rule 1(2) of the 1991 rules to insert new defined terms.

Rules 6, 7, 8, 9, 10 and 12 amend the 1991 Rules to ensure that various provisions that already apply in respect of certain officers of the Service or Welsh family proceedings officers will also apply in respect of such officers undertaking the roles referred to in rule 11AA of the 1991 Rules as amended by rule 8.

Rule 11 amends rule 16 of the 1991 Rules to ensure that a court cannot make specified orders in the absence of a given party where the court does not yet have sufficient information to enable it to determine the matter.

Rule 13 makes amendments to Schedule 1 to the 1991 Rules. Form C42 in that Schedule is amended by rule 13(d) to ensure consistency with the same form used in the Family Proceedings Rules 1991. Form C43 in Schedule 1 to the 1991 Rules is amended by rule 13(e) to provide that where there are no proceedings pending an officer of the Service or Welsh family proceedings officer who makes a risk assessment under section 16A of the 1989 Act has the ability to apply to the court to revive the previous proceedings and to consider the risk assessment. The amendment to the Form C43 also includes a warning notice as required by section 11I of the 1989 Act.

Rule 13(c) amends Schedule 1 to the 1991 Rules to insert a new Form C100 for use when applying for an order under section 8 of the 1989 Act. Consequential amendments to other rules and to other forms and are made by rules 5 and 13(a) and (b). Transitional provision in respect of these amendments is made by rule 14.

(1)

1980 c.43. Section 144 was amended by section 125(3) of and paragraph 25 of Schedule 18 to the Courts and Legal Services Act 1990 (c.41), section 78(2) of and paragraphs 26 and 29 of Schedule 11 to the Access to Justice Act 1999 (c.22), section 109(1) and (3) of and paragraph 245 of Schedule 8 and Schedule 10 to the Courts Act 2003 (c.39), section 15(1) of and paragraphs 99 and 102 of Schedule 4 to, and section 59(5) of and paragraph 4 of Schedule 11 to, the Constitutional Reform Act 2005 (c.4), and by section 208(1) and paragraphs 42 and 43 of Schedule 21 to the Legal Services Act 2007 (c.29).

(2)

S.I. 1991/ 1395. Relevant amending instruments are S.I. 1991/1991, 1992/2068, 1994/3156, 1997/1895, 2001/ 615 and 818, 2003/2840, 2004/3376, 2005/229, 413, 585, 617 and 2930 and 2007/2188.