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

PART 4 PROCEEDINGS UNDER THE 1958 ACT

CHAPTER 1 INTERPRETATION OF THIS PART

Interpretation

34.—(1) Section 1(3) of the 1958 Act applies to the interpretation of Chapter 2 of this Part as it applies to the interpretation of Part 1 of the 1958 Act.

(2) Section 21 of the 1958 Act(1) applies to the interpretation of this Part as it applies to the interpretation of the 1958 Act.

(3) In this Part, “appropriate officer of the original court” means—

(a) the Sheriff-clerk, in the case of a sheriff court in Scotland;

(b) the clerk of petty sessions, in the case of a magistrates’ court in Northern Ireland;

(c) the Deputy Principal Clerk of Session, in the case of the Court of Session;

(d) the Chief Registrar of the Queen’s Bench Division (Matrimonial), in the case of the High Court of Justice in Northern Ireland.

(4) In this Part any reference to “the administering court” in relation to a maintenance order is a reference to the magistrates’ court—

(a) which made the maintenance order;

(b) in which the maintenance order is registered under the 1958 Act, under Part 2 of the 1950 Act or under the Maintenance Orders (Facilities for Enforcement) Act 1920(2); or

(c) by which the maintenance order was confirmed under the Maintenance Orders (Facilities for Enforcement) Act 1920.

CHAPTER 2 PROCEDURE UNDER PART 1 OF THE 1958 ACT

Applications for registration under section 2(3) of the 1958 Act

35.  An application under section 2(3) of the 1958 Act(3) for the registration in the High Court of a magistrates’ courts order need not be in writing or on oath.

Manner in which a magistrates’ court is to be satisfied as to various matters

36.—(1) An applicant wishing to show, in accordance with section 2A(1) of the 1958 Act(4), that—

(a) the order to which the application relates, though deemed to have been made by a magistrates’ court in England and Wales, was in fact made in another part of the United Kingdom or a country or territory outside the United Kingdom; and

(b) by the law of that part or of that country or territory, interest is recoverable under the order,

may do so by producing the original court order or an authenticated copy of that order showing the date or time from which, and the rate at which, interest is so recoverable.

(2) For the purposes of paragraph (1), a copy is deemed to be authenticated if it purports to be certified by a judge or official of the court which made the original order to be a true copy of the original order, but it is not necessary to prove the signature or official position of the person appearing to have given such a certificate.

(3) Where an application for the registration in the High Court of a magistrates’ court order is granted, the court must be satisfied in the manner provided by paragraph (5) that no process for the enforcement of the order issued before the grant of the application remains in force.

(4) Where the court receives notice under section 5 of the 1958 Act(5), the court must be satisfied in the manner provided by paragraph (5) that no process for the enforcement of the order issued before the giving of the notice remains in force and that no proceedings for the variation of the order are pending in a magistrates’ court.

(5) For the purpose of satisfying the court as to the matters referred to in paragraphs (3) and (4)—

(a) if the person through or to whom payments are ordered to be made is the designated officer for a magistrates’ court, a certificate signed by the designated officer must be produced;

(b) in any other case, a document verified by a statement of truth from a Justice of the Peace must be produced.

Receipt by a magistrates’ court of a notice of registration in the High Court of an order previously registered in a magistrates’ court

37.  Where a magistrates’ court receives from the High Court notice of the registration in the High Court of an order made by a sheriff court in Scotland or a court of summary jurisdiction in Northern Ireland and previously registered in the magistrates’ court in accordance with section 17(4) of the 1950 Act, the designated officer for the court will enter the particulars of such a notice in the register.

Copy of a magistrates’ court order sent to the High Court for registration

38.—(1) Where—

(a) an application for the registration of a magistrates’ court order is granted; and

(b) the court is satisfied that no process issued for the enforcement of the order before the grant of the application remains in force,

the court will, in accordance with section 2(4)(c) of the 1958 Act, direct the designated officer to send a copy of the order, which is certified to be a true copy, to the appropriate officer of the High Court.

(2) Where the court is satisfied in accordance with rule 36 that interest is recoverable under the order in respect of which the application has been granted, the court will, in accordance with section 2A(1) of the 1958 Act, direct the designated officer to send, together with the certified copy of the order mentioned in paragraph (1), a certificate in respect of the interest so recoverable in the form numbered 1 in Schedule 2 to the appropriate officer of the High Court.

Registration of a High Court or county court order in a magistrates’ court

39.  Where a designated officer for a magistrates’ court, in accordance with section 2(2)(b) of the 1958 Act(6), receives from a court officer of the High Court or the county court a certified copy of a High Court or county court order, the designated officer will—

(a) register the order in the designated officer’s court by means of a memorandum in the register; and

(b) send written notice to the court officer of the High Court or the county court (as the case may be) that the order has been registered.

Registration in a magistrates’ court of an order made in the Court of Session or in the High Court in Northern Ireland

40.  Where a designated officer for a magistrates’ court, in accordance with section 2(2)(b) of the 1958 Act, receives from the appropriate officer of the original court in Scotland or Northern Ireland a certified copy of an order made by the Court of Session or by the High Court in Northern Ireland, the designated officer will—

(a) register the order in the designated officer’s court by means of a memorandum in the register; and

(b) send written notice to the appropriate officer of the High Court and to the appropriate officer of the original court that the order has been registered.

Notices: payments made through a designated officer

41.—(1) A notice under section 2(6ZC)(7) of the 1958 Act that the payments under a High Court or county court order or an order made by the Court of Session or by the High Court in Northern Ireland have, on its registration in a magistrates’ court, become payable through the designated officer for a magistrates’ court will be given by the designated officer for the court of registration in the form numbered 2 in Schedule 2.

(2) Paragraphs (3) and (4) apply in relation to a notice under section 2(6ZC) of the 1958 Act that payments under—

(a) a magistrates’ court order; or

(b) an order which is registered in a magistrates’ court under Part 2 of the 1950 Act and which was made by—

(i) a sheriff court in Scotland; or

(ii) a court of summary jurisdiction in Northern Ireland,

have, on the registration of the order in the High Court, ceased to be payable to a designated officer for a magistrates’ court.

(3) The notice must be—

(a) given by the designated officer for the administering court; and

(b) in form numbered 3 in Schedule 2.

(4) Where payments have been made through a designated officer other than the designated officer for the administering court, the designated officer for the administering court must send a copy of the notice to the designated officer through whom payments have been made.

(5) Paragraphs (6) and (7) apply in relation to a notice under section 5(5)(b) of the 1958 Act that the registration in a magistrates’ court of an order of the High Court, a county court, the Court of Session or the High Court in Northern Ireland has been cancelled and that payments under the order have ceased to be payable through a designated officer for a magistrates’ court.

(6) The notice must be—

(a) given by the designated officer for the court of registration; and

(b) be in the form numbered 4 in Schedule 2.

(7) Where payments have been payable through a designated officer other than the designated officer for the court of registration, the designated officer for the court of registration must send a copy of the notice to the designated officer through whom payments have been payable.

(8) A notice given in accordance with this rule must be served personally on to the person liable to make payments under the order to which the notice relates or sent by post to that person at that person’s last known address.

Method of payment

42.—(1) This rule applies where the court exercises its duties or powers under section 2(6ZA), 3(2A) or (2B) or 4(2A), (5A) or (5B) of the 1958 Act(8).

(2) Where the court orders that payments under a registered order are to be made by a particular means—

(a) the justices’ clerk will record on a copy of the order the means of payment which the court has ordered; and

(b) as soon as practicable, the designated officer will notify in writing the person liable to make payments under the order, how payments are to be made.

(3) Paragraph (4) applies where the court orders that payments be made—

(a) by the debtor to the creditor;

(b) by the debtor to the designated officer for the court; or

(c) to the designated officer for any other court,

by a method of payment falling within section 59(6) of the 1980 Act.

(4) The designated officer to whom payments are to be made must notify the person liable to make payments under the order of sufficient details of the account into which the payments should be made to enable payments to be made into that account.

Variation of method of payment

43.—(1) This rule applies where, under section 60(4) of the 1980 Act as applied by section 4(5A) of the 1958 Act or as modified by section 4(5B) of the 1958 Act, the designated officer receives an application from an interested party for the method of payment to be varied.

(2) The designated officer must as soon as practicable notify in writing the interested party who made the application and, where practicable, any other interested party, of the result of the application including any decision to refer the matter to the court.

(3) Where the justices’ clerk grants the application, the justices’ clerk must record the variation on a copy of the order.

Notice of variation, remission, discharge or cancellation of registration by a magistrates’ court of a registered order

44.—(1) Where, under section 4(2) of the 1958 Act(9), a High Court or county court order registered in a magistrates’ court is varied by a magistrates’ court, the designated officer for the magistrates’ court making the variation must give notice of the variation to the High Court or county court, as the case may be.

(2) Where, under section 4(4) of the 1958 Act, an application for the variation of a High Court or county court order registered in a magistrates’ court is remitted to the original court by a magistrates’ court, the designated officer for the remitting court must give notice of the remission to the High Court or county court, as the case may be.

(3) Where, under section 5(4) of the 1958 Act, the registration of a High Court or county court order in a magistrates’ court is cancelled by the court of registration, the designated officer for the court of registration must give notice of cancellation to the High Court or county court, as the case may be, stating (if applicable) that the cancellation is in consequence of a notice given under section 5(1) of the 1958 Act.

(4) Where under section 5(4) of the 1958 Act the registration in a magistrates’ court of an order made in the Court of Session or the High Court in Northern Ireland is cancelled by that magistrates’ court, the designated officer for that magistrates’ court must give notice of the cancellation to—

(a) the appropriate officer of the original court; and

(b) where the order is registered by virtue of Part 2 of the 1950 Act, to the appropriate officer of the High Court.

(5) Where under section 5(4) of the 1958 Act(10) the registration in a magistrates’ court of an order under Part 2 of the 1950 Act is cancelled by that magistrates’ court, the designated officer for that magistrates’ court must give notice of the cancellation to—

(a) the appropriate officer of the original court; and

(b) where the order is registered under Part 1 of the 1958 Act, to the appropriate officer of the High Court.

(6) Where a magistrates’ court order registered in the High Court is varied or discharged by a magistrates’ court, the designated officer for the magistrates’ court which varies or discharges the order must give notice of the variation or discharge to the High Court.

(7) Notice under this rule will be given by sending to the appropriate officer of the High Court or the registrar of the county court (as the case may be) a copy of the order in question, certified to be a true copy by the designated officer for the magistrates’ court.

(8) For the purposes of this rule, the appropriate officer of the High Court will be—

(a) in relation to a High Court order registered in a magistrates’ court, the officer to whom notice of registration was given under rule 39; or

(b) in relation to a magistrates’ court order registered in the High Court, the officer to whom a copy of the order was sent under rule 38.

(9) In the case of a High Court maintenance order, the notice referred to in paragraph (6) must be marked with the title and case number, if any.

(10) In the case of a county court maintenance order, any notice referred to in this rule must be marked with the complaint or application number.

(11) Where a magistrates’ court order registered in the High Court is discharged by a magistrates’ court and it appears to the magistrates’ court ordering the discharge that no arrears remain to be recovered, notice under section 5(3) of the 1958 Act(11) must be given by an endorsement on the certified copy of the order of discharge referred to in paragraph (7).

Notices received from the High Court or a county court or from a person entitled to payments

45.—(1) Subject to paragraph (4), this rule applies where any notice is received—

(a) of the registration in the High Court of a magistrates’ court order;

(b) of the discharge or variation by the High Court or a county court of a High Court or county court order registered in a magistrates’ court;

(c) of the discharge or variation by the Court of Session or High Court in Northern Ireland of an order made by such a court and registered in a magistrates’ court;

(d) under section 5(1) or (2) of the 1958 Act.

(2) The designated officer for the magistrates’ court must register the notice in that officer’s court by means of a memorandum in the register.

(3) In the case of a notice under section 5(1) or (2) of the 1958 Act, the designated officer for the magistrates’ court must ensure that the person in possession of any warrant of commitment, issued but not executed, for the enforcement of the order is informed of the giving of that notice.

(4) Where any notice is received by a court that the registration of an order in the High Court has been cancelled under section 5(4) of the 1958 Act, the designated officer must enter the particulars of the notice in the register.

Complaints for variation of High Court maintenance orders: jurisdiction

46.  Rule 41 of the Magistrates’ Courts Rules 1981(12) applies to a complaint for the variation of a High Court or county court order registered in a magistrates’ court as if—

(a) the order were a magistrates’ court maintenance order made by the court of registration; and

(b) in paragraph (4) of that rule, for the words “shall cause” there were substituted “may cause”.

CHAPTER 3 MISCELLANEOUS

Administering court to be informed of proceedings in a foreign court

47.—(1) This rule applies where any decision is reached, or warrant of distress or commitment is issued, in pursuance of a complaint or application relating to a maintenance order or the enforcement of a maintenance order, being a complaint or application heard by a magistrates’ court other than the administering court.

(2) The designated officer for the magistrates’ court referred to in paragraph (1) must immediately send to the designated officer for the administering court an extract from the register containing a minute or memorandum of the decision, or the issue of the warrant, as the case may be.

(3) On receipt of the extract, the designated officer for the administering court must enter the minute or memorandum in the register for that officer’s court.

Review of committals, etc.

48.—(1) Paragraph (2) applies where, for the purposes of enforcing a maintenance order, a magistrates’ court has exercised its power to postpone the issue of a warrant of commitment under—

(a) section 77(2) of the 1980 Act; or

(b) section 18(3) or (5) of the 1958 Act(13),

and, under the terms of the postponement, the warrant falls to be issued.

(2) The designated officer must—

(a) give notice to the defendant; and

(b) attach to that notice a copy of the form referred to in the Forms Practice Direction.

(3) An application under section 18(1) of the 1958 Act requesting that a warrant not be issued must be in the form referred to in the Forms Practice Direction and must be sent to the designated officer.

(4) For the purposes of section 18(2) of the 1958 Act, the period for the receipt by the designated officer of an application under section 18(1) of the 1958 Act is eight days beginning with the day on which the designated officer sends to the defendant the notice referred to in paragraph (2).

(5) Where the period of eight days referred to in paragraph (4) ends on a day when the court office is closed, an application received by the designated officer on the next day on which the court office is open will be made within time.

(6) An application under section 18(4) of the 1958 Act (requesting cancellation of a warrant of commitment which has been executed) must be in the form referred to in the Forms Practice Direction.

(7) Where an application by a defendant under section 18(1) or (4) of the 1958 Act is considered by the court, the designated officer must give notice of the decision of the court, if the person in question is not present—

(a) to the person in whose favour the maintenance order in question was made; and

(b) except where an application under section 18(1) of the 1958 Act is dismissed, to the defendant.

(8) Where, on considering an application by a defendant under section 18(4) of the 1958 Act, the court—

(a) makes an order under section 18(5)(b) of the 1958 Act for the cancellation of the warrant of commitment; or

(b) remits under section 18(6) of the 1958 Act the whole or any part of the sum in respect of which the warrant was issued,

the designated officer must immediately give written notice of the decision to the person in charge of the prison or other place in which the defendant is detained.

(1)

Section 21 was amended by section 33(4) of and Schedule 4 to the Family Law Reform Act 1987, section 76(2) and 106 of and paragraph 33 and Part 5 of Schedule 10 and Schedule 15 to the Access to Justice Act 1999, section 154 of and Schedule 7 to the Magistrates’ Courts Act 1980 and section 109(1) and (3) of and paragraph 104 of Schedules 8 and Schedule 10 to the Courts Act 2003.

(2)

1920 c.33.

(3)

Section 2(3) was amended by section 37 and Part 2 of Schedule 11 to the Civil Jurisdiction and Judgments Act 1982.

(4)

Section 2A was inserted by section 37 of and Part 2 of Schedule 11 to the Civil Jurisdiction and Judgments Act 1982.

(5)

Section 5 was amended by section 3 of and paragraph 4(a) and (b) of Schedule 3 to the Administration of Justice Act 1977, section 10 of and paragraph 11 of Schedule 10 to the Maintenance Enforcement Act 1991, sections 97(1)(b) and 106 of and Part 5 of Schedule 15 to the Access to Justice Act 1999 and section 109(1) of and paragraphs 101(1) to (3) of Schedule 8 to the Courts Act 2003.

(6)

Section 2(2)(b) was amended by section 109(1) of and paragraphs 98(1) and (2) of Schedule 8 to the Courts Act 2003.

(7)

Section 2(6ZC) was inserted by section 10 of and paragraph 7 of Schedule 1 to the Maintenance Enforcement Act 1991 and amended by section 109(1) of and paragraphs 98(1) and (2) of Schedule 8 to the Courts Act 2003.

(8)

Sections 2(6ZA), 3(2A) and (2B), 4(2A),(5A) and (5B) were inserted by section 10 of and paragraphs 7 to 9 of Schedule 1 to the Maintenance Enforcement Act 1991. Section 2(6ZA) was amended by section 109(1) of and paragraphs 98(1) and (5) of Schedule 8 to the Courts Act 2003. Section 4(5A) and (5B) were amended by section 261(c) of and paragraph 22(1) and (2) of Schedule 27 to the Civil Partnership Act 2004. Section 4(5B) was amended by section 109(1) of and paragraphs 100 (a) to (c) of Schedule 8 to the Courts Act 2003 and sections 106 and 90(1) of paragraphs 25, 28(1) and (4) of Schedule 13 and Part 5 of Schedule 15 to the Access to Justice Act 1999.

(9)

Section 4(4) was amended by section 48(3) of the Administration of Justice Act 1970 (c.31).

(10)

Section 5(4) was amended by sections 97(1)(b) and 106 of and Part 5 of Schedule 15 to the Access to Justice Act 1999.

(11)

Section 5(3) was amended by section 3 of and paragraph 4(a) of Schedule 3 to the Administration of Justice Act 1977.

(12)

Rule 41 was amended by S.I. 1989/384, 2001/610 and 2005/617.

(13)

Section 18 was amended by section 154 of and paragraph 23 of Schedule 7 to the Magistrates’ Courts Act 1980 and section 109(1) of and paragraphs 102(1) to (3) of Schedule 8 to the Courts Act 2003.