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The Family Proceedings Rules (Northern Ireland) 1996

Type Ni-Statutory-Rule

Publication 1996-07-19

Last updated 2022-11-28

State In force

Jurisdiction Northern Ireland

Department Government Printer for Northern Ireland

Source legislation.gov.uk

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(b) an address to which any payment which the trustees or managers are required to make to the applicant is to be sent; and

(c) where the address in sub-paragraph (b) is that of a bank, a building society or the Department of National Savings sufficient details to enable payment to be made into the account of the applicant.

(5) Where the petitioner and the respondent have agreed on the terms of an order which by virtue of Article 27B or 27C of the Order of 1978 imposes any requirement on the trustees or managers of a pension scheme they shall with 4 days after notifying the court of their agreement serve on the trustees or managers a copy of the agreed terms together with the particulars set out in paragraph (4)(a), (b) and (c).

(6) Trustees or managers of a pension scheme on whom a copy of such a notice is served may, within 14 days after service, require the applicant to provide them with a copy of the affidavit supporting his application.

(7) Trustees or managers of a pension scheme who receive a copy of an affidavit as required pursuant to paragraph (5) may within 14 days after receipt file an affidavit in answer.

(8) Trustees or managers of a pension scheme who file an affidavit pursuant to paragraph (6) may file therewith a notice requiring an appointment to be fixed; and where such a notice is filed—

(a) the proper officer or chief clerk shall fix an appointment for the hearing or further hearing of the application and shall give not less than 14 days' notice of that appointment to the petitioner, the respondent and the trustees or managers of the pension scheme; and

(b) the trustees or managers of the pension scheme shall be entitled to be represented at any such hearing.

(9) In deciding whether to make an order which by virtue of Article 27B or 27C of the Order of 1978 imposes any requirement on the trustees or managers of a pension scheme, the court shall take into account any representations of the trustees or managers as to whether, in all the circumstances of the case, the court ought to make the order, and in particular whether the particulars supplied under paragraph (4) are sufficient to enable the trustees or managers to comply with their obligations under any such order.

(10) Expressions used in this rule have the same meaning as in Article 27D of the Order of 1978.

PART III — OTHER FAMILY PROCEEDINGS

Application by spouse for failure to maintain

3.1

(1) An application under Article 29 of the Order of 1978 by a party to a marriage who alleges that the other party to the marriage—

(a) has failed to provide reasonable maintenance for the applicant, or

(b) has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family,

shall be made by originating summons in Form M18. Such summons shall be issued out of—

(i) the Matrimonial Office in relation to applications to the High Court;

(ii) a county court office, in relation to applications to a county court.

(2) There shall be filed in support of the summons an affidavit by the applicant which shall state—

(a) the names of the parties to the marriage, the place and date of the marriage;

(b) the names of each child and his date of birth, or if it be the case that he is over 18 years of age, and in the case of each minor child over the age of 16 years whether he is, or will be, or if an order for provision were made would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation and the person with whom any such child is residing;

(c) if there have been any previous proceedings in any court in Northern Ireland or elsewhere with reference to the marriage or children of the marriage or between the applicant and respondent with reference to any property of either or both of them, the date and effect of any decree or order, and in the case of proceedings in reference to the marriage if there has been any resumption of cohabitation since the making of the decree or order;

(d) where the application is for periodical payments or secured periodical payments for a child—

(i) whether the application is

for a stepchild;

in addition to child support maintenance already payable under a Child Support Agency assessment;

to meet expenses arising from a child’s disability;

to meet expenses incurred by a child being educated or trained for work; or

made on some other specified ground;

(ii) if the child or the person with care of the child or the absent parent of the child is not habitually resident in the United Kingdom;

(e) particulars of the alleged failure to maintain;

(f) whether there are or have been any proceedings in the Child Support Agency with reference to the maintenance of each child and if so the details of those proceedings;

(g) the means of the applicant and the respondent;

(h) the facts upon which it is claimed that the court has jurisdiction to entertain the proceedings.

(3) If the proper officer or chief clerk, as the case may be, does not consider it practicable to fix a day for the hearing of the application at the time when it is issued he may do so subsequently and in that case he shall forthwith give notice of the day to all parties.

(4) Within 21 days after the time limited for giving notice of intention to defend, the respondent shall, if he intends to contest the application, file an affidavit in answer setting out the grounds on which he relies (including any allegation which he wishes to make against the applicant), and shall in any case, unless the court otherwise directs, file an affidavit containing full particulars of his property and income and serve a copy of the affidavit on the applicant.

(5) Where the respondent’s affidavit alleges adultery the alleged adulterer shall, unless the court otherwise directs, be made a party cited and be served with a copy of the affidavit, with notice in Form M19, and rule 2.8 shall apply, with the necessary modifications, as if the affidavit were a petition and the party cited were a co-respondent.

(6) A party cited who wishes to defend all or any of the charges made against him shall within 21 days after the time limited for giving notice of intention to defend, file an affidavit in answer and serve a copy of the affidavit on the respondent.

(7) If the respondent does not file an affidavit in accordance with paragraph (4), the court may order him to file an affidavit containing full particulars of his property and income and serve a copy of any such affidavit on the applicant.

(8) Within 14 days after being served with a copy of any affidavit in answer filed by the respondent the applicant may file an affidavit in reply and serve a copy on the respondent and on any party cited. No further affidavit shall be filed without leave.

Transfer to High Court of applications under rule 3.1

3.2

(1) Where it appears to a divorce county court that the respondent intends to contest an application under the last foregoing rule on the ground that—

(a) by reason of the applicant’s conduct or otherwise the respondent is not liable to maintain the applicant, or

(b) no court in Northern Ireland has jurisdiction to entertain the application,

the court shall order that the application be transferred to the High Court.

Hearing of applications under rule 3.1

3.3

(1) Without prejudice to the provisions of rule 3.2, rules 2.67 (except paragraphs (5) and (7) thereof) and 2.68 shall apply with the necessary modifications to an application for an order under Article 29 of the Order of 1978 as if the application were an application for ancillary relief.

(2) The application shall be heard by a judge in chambers, and, if the application is to a divorce county court, the hearing shall be fixed to take place at such court as in the opinion of the chief clerk is the most convenient.

(3) On the hearing of the application the judge may make such order as he thinks just or may refer the application (except any application under Article 8 of the Order of 1995), or any application for an order under Article 29(5) of the Order of 1978 to the Master for him to investigate the means of the parties to the marriage.

(4) Where an application is referred to the Master under paragraph (3), the proper officer or the chief clerk, as the case may be, shall fix an appointment for the hearing of the application and thereupon the provisions of these Rules relating to ancillary relief shall apply except that where the judge has not made a finding that there has been wilful neglect to maintain—

(a) the Master shall, after completing his investigation under rule 2.64, report the result thereof in writing to a judge to whom the application shall be adjourned;

(b) the Master’s report shall contain an estimate of the financial relief to which, in his opinion, the applicant would be entitled if the application were granted;

(c) the Master’s report shall be filed and any party shall be entitled to inspect the report and to be supplied with a copy of it on payment of the prescribed fee.

(5) Where a person has been made a party cited, the judge may, if after the close of the evidence on the part of the respondent he is of opinion that there is not sufficient evidence against the party cited, dismiss him from the proceedings.

(6) Subject to the provisions of this rule and of rules 3.1 and 3.2, these Rules shall, so far as applicable, apply with the necessary modifications to an application under Article 29 of the Order of 1978 as if—

(a) the application were a cause, and

(b) the originating summons were a petition and the applicant the petitioner.

Application for alteration of maintenance agreement during lifetime of parties

3.4

(1) An application to the court under Article 37 of the Order of 1978 for the alteration of a maintenance agreement during the lifetime of the parties shall be made by originating summons in accordance with Form M20.

(2) The application may be filed in the Matrimonial Office or a county court office and may be heard and determined by the Master.

(3) There shall be filed in support of the summons an affidavit by the applicant exhibiting a copy of the agreement and stating—

(a) the residence of the parties to the agreement at the date of the application and, unless both parties are then resident in Northern Ireland, their domicile at that date;

(b) the date and place of the marriage between the parties to the agreement and the name and status of the wife before the marriage;

(c) the full names (including surnames) of any children of the family and of any other children for whom the agreement makes financial arrangements and—

(i) the date of birth of each child, now living or, if it be the case, that he is over 18 years of age, and, in the case of each minor over 16 years of age, whether he is or will be, or if an order or provision were made would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation and the place where and the person with whom any minor child is residing;

(ii) the date of death of any such child who has died since the agreement was made;

(d) whether there have been any previous proceedings in any court with reference to the agreement or to the marriage or to any child of the family or of the other children for whom the agreement makes financial arrangements or between the applicant and respondent with reference to any property of either or both of them, and the date and effect of any order made;

(e) whether there are or have been any proceedings in the Child Support Agency with reference to the maintenance of each child and if so the details of those proceedings;

(f) the means of the applicant and the other party to the agreement insofar as they are within the applicant’s knowledge or belief;

(g) the nature of the alteration of the agreement sought and the facts alleged by the applicant to justify the alterations.

(4) A copy of the affidavit shall be served on the respondent with the summons.

(5) The respondent shall, within 14 days after the time limited for giving notice of intention to defend, file an affidavit in answer to the application containing full particulars of his property and income and, if he does not do so, the court may order him to file an affidavit containing such particulars.

(6) A respondent who files an affidavit under paragraph (5) shall serve a copy on the applicant.

Application for alteration of maintenance agreement after death of one party

3.5

(1) An application under Article 38 of the Order of 1978 for the alteration of a maintenance agreement after the death of one of the parties to it shall be made by originating summons in Form M21.

(2) The application may be filed in the Matrimonial Office or a county court office and may be heard and determined by the Master.

(3) There shall be filed in support of the summons an affidavit by the applicant exhibiting a copy of the agreement and an office copy of the grant of representation to the deceased’s estate and of every testamentary document admitted to proof.

(4) The affidavit referred to in paragraph (2) shall state—

(a) whether the deceased died domiciled in Northern Ireland;

(b) the place and date of the marriage between the parties to the agreement and the name and status of the wife before the marriage;

(c) the name of every child of the family and of any other child for whom the agreement makes financial arrangements, and—

(i) the date of birth of each such child who is still living (or, if it be the case, that he has attained 18 years), and the place where the person with whom any such minor child is residing;

(ii) the date of death of any such child who has died since the agreement was made;

(d) whether there have been in any court any, and if so what, previous proceedings with reference to the agreement or to the marriage or to the children of the family or to any other children for whom the agreement makes financial arrangements, and the date and effect of any order or decree made in such proceedings;

(e) whether there have been in any court any proceedings by the applicant against the deceased’s estate under the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979[^f00020] or any statutory provision repealed by that Order and the date and effect of any order made in such proceedings;

(f) in the case of an application by the surviving party, the applicant’s means;

(g) in the case of an application by the personal representatives of the deceased, the surviving party’s means, so far as they are known to the applicants, and the information mentioned in sub-paragraph (a), (b) and (c) of rule 3.6(2);

(h) the facts alleged by the applicant as justifying an alteration in the agreement and the nature of the alteration sought;

(i) if the application is made after the end of the period of six months from the date on which representation in regard to the deceased’s estate was first taken out, the grounds on which the court’s permission to entertain the application is sought.

Further proceedings on an application under rule 3.5

3.6

(1) The court may at any stage of the proceedings direct that any person be added as a respondent to an application under rule 3.5.

(2) A respondent who is a personal representative of the deceased shall, within 14 days after the time limited for entered an appearance, file an affidavit in answer to the application stating—

(a) full particulars of the value of the deceased’s estate for probate, after providing for the discharge of the funeral, testamentary and administration expenses, debts and liabilities payable thereout, including the amount of the capital transfer tax and interest thereon;

(b) the person or classes of person beneficially interested in the estate (giving the names and addresses of all living beneficiaries) and the value of their interests so far as ascertained; and

(3) If a respondent who is a personal representative of the deceased does not file an affidavit stating the matters mentioned in paragraph (3), the court may order him to do so.

(4) A respondent who is not a personal representative of the deceased may, within 14 days after the time limited for entering an appearance, file an affidavit in answer to the application.

Application of other rules to proceedings under Article 37 or 38 of the Order of 1978 [ or paragraph 62 or 66 of Schedule 15 to the Act of 2004]

3.7

(1) Rules 2.63; 2.64(1) and (4) to (7), 2.65, 2.66 and 2.69 shall apply, with the necessary modifications, to an application under Article 37 or 38 of the Order of 1978 as if it were an application for ancillary relief.

(2) Subject to paragraph (1) and to the provisions of rule 3.4, these Rules shall, so far as applicable, apply with the necessary modifications to an application under Article 37 or 38 of the Order of 1978 as if the application were a cause, the originating summons a petition, and the applicant the petitioner.

Proceedings in respect of polygamous marriage

3.8

(1) The provisions of this rule shall have effect where a petition or originating summons asks for matrimonial relief within the meaning of Article 50(2) of the Order of 1978 in respect of a marriage entered into under a law which permits polygamy (in this rule referred to as a polygamous marriage).

(2) The petition or originating summons—

(a) shall state that the marriage in question is polygamous;

(b) in respect of the additional spouse, shall give his or her full name and address and the date and place of his or her marriage to the petitioner or applicant or, as the case may be, to the respondent or state, so far as may be applicable, that such information is unknown to the petitioner or applicant.

(3) In this rule “additional spouse” means any living spouse of the petitioner or applicant additional to the respondent or as the case may be any living spouse of the respondent additional to the petitioner or applicant.

(4) Without prejudice to its powers under R.S.C. Order 15 (which deals with causes of action, counterclaims and parties) or C.C.R. Order 9 (which deals with amendments), the court may order that any additional spouse be added as a party to the proceedings or be given notice of the proceedings or of any application in the proceedings for any such order as is mentioned in Article 50(2)(d) of the Order of 1978.

(5) Any order under paragraph (4) may be made at any stage of the proceedings and either on the application of any party or by the court of its own motion and, where an additional spouse is mentioned in a petition or an acknowledgement of service of a petition, the petitioner shall, on making any application in the proceedings or, if no previous application has been made in the proceedings, on lodging the certificate of readiness, ask for directions as to whether an order should be made under paragraph (3).

(6) Any person to whom notice is given pursuant to an order under paragraph (4) shall be entitled, without filing an answer or affidavit, to be heard in the proceedings or on the application to which the notice relates.

[ Transfer of certain tenancies on divorce etc., [ dissolution etc., of civil partnership] or on separation of cohabitees

3.9

(1) The jurisdiction of the court under Article 41 of, and Schedule 1 to, the Order of 1989 may be exercised by the Master.

(2) Where an application is made for an order under Part II of the said Schedule 1 notice of the application shall be served by the applicant on—

(a) the spouse entitled to occupy the dwelling house to which the application relates; and

(b) the landlord of the dwelling house,

and any person so served shall be entitled to be heard on the application.

(3) Where the court intends to make an order under the said Schedule 1 then, before making the order, the court shall cause notice of its intention to make the order to be given to the landlord and shall afford him an opportunity of being heard.

Application for declaration as to marital status

3.10

(1) Unless otherwise directed, a petition by which proceedings are begun under Article 31 of the Order of 1989 for a declaration as to marital status shall state—

(a) the names of the parties to the marriage to which the application relates and the residential address of each of them at the date of the presentation of the petition;

(b) the place and date of any ceremony of marriage to which the application relates;

(c) the grounds on which the application is made and all other material facts alleged by the petitioner to justify the making of the declaration;

(d) whether there have been or are continuing any proceedings in any court, tribunal or authority in Northern Ireland or elsewhere between the parties which relate to, or are capable of affecting the validity or subsistence of the marriage, divorce, annulment or legal separation to which the application relates, or which relate to the matrimonial status of either of the parties, and if so—

(i) the nature, and either the outcome or present state of those proceedings,

(ii) the court, tribunal or authority before which they were begun,

(iii) the date when they were begun,

(iv) the names of the parties to them,

(v) the date or expected date of the trial,

(vi) any other facts relevant to the question whether the petition should be stayed under Schedule 1 of the Order,

and such proceedings shall include any which are constituted otherwise than in a court of law in any country outside Northern Ireland, if they are instituted before a tribunal or other authority having power under the law having effect there to determine questions of status, and shall be treated as continuing if they have begun and have not been finally disposed of;

(e) where it is alleged that the court has jurisdiction based on domicile, which of the parties to the marriage to which the application relates is domiciled in Northern Ireland on the date of the presentation of the petition, or died before that date and was at death domiciled in Northern Ireland;

(f) where it is alleged that the court has jurisdiction based on habitual residence, which of the parties to the marriage to which the application relates has been habitually resident in Northern Ireland, on the date of the presentation of the petition, or died before that date and had been habitually resident in Northern Ireland throughout the period of one year ending with the date of death;

(g) where the petitioner was not a party to the marriage to which the application relates, particulars of his interest in the determination of the application.

(2) Where the proceedings are for a declaration that the validity of a divorce, annulment or legal separation obtained in any country outside Northern Ireland in respect of the marriage either is or is not entitled to recognition in Northern Ireland, the petition shall in addition state the date and place of the divorce, annulment or legal separation.

(3) There shall be annexed to the petition a copy of the certificate of any marriage to which the application relates, or, as the case may be, a certified copy of any decree of divorce, annulment or order for legal separation to which the application relates.

(4) Where a document produced by virtue of paragraph (3) is not in English it shall, unless the court otherwise directs, be accompanied by a translation certified by a notary public or authenticated by affidavit.

(5) The parties to the marriage in respect of which a declaration is sought shall be petitioner and respondent respectively to the application, unless a third party is applying for a declaration, in which case he shall be the petitioner and the parties shall be respondents to the application.

Procedure to be followed in relation to application under rule 3.10

3.11

(1) The petition referred to in rule 3.10 shall be supported by an affidavit by the petitioner verifying the petition and giving particulars of every person whose interest may be affected by the proceedings and his relationship to the petitioner:

Application for leave to apply for financial relief after overseas divorce

3.12

(1) An application to the High Court for leave to apply for an order for financial relief under Part IV of the Order of 1989 shall be made ex parte by originating summons in Form M27 issued out of the Matrimonial Office and shall be supported by an affidavit by the applicant stating the facts relied on in support of the application with particular reference to the matters set out in Article 20(2) of that Order.

(2) The affidavit in support shall give particulars of the judicial or other proceedings by means of which the marriage to which the application relates was dissolved or annulled or by which the parties to the marriage were legally separated and shall state, so far as is known to the applicant:—

(a) the names of the parties to the marriage and the date and place of the marriage;

(b) the occupation and residence of each of the parties to the marriage;

(c) whether there are any living children of the family and, if so, the number of such children and full names (including surname) of each and his date of birth or, if it be the case, that he is over 18;

(d) whether either party to the marriage has remarried;

(e) an estimate in summary form of the approximate amount or value of the capital resources and net income of each party and of any minor child of the family;

(f) the grounds on which it is alleged that the court has jurisdiction to entertain an application for financial relief under Part IV of the Order of 1989.

(3) The proper officer shall fix a date and time for the hearing of the application by the judge in chambers and give notice thereof to the applicant.

Application for an order for financial relief or an avoidance of transaction order under Part IV of the Order of 1989

3.13

(1) An application to the High Court for an order for financial relief under Part IV of the Order of 1989 shall be made by originating summons in Form M28 issued out of the Matrimonial Office and at the same time the applicant, unless otherwise directed, shall file an affidavit in support of the summons giving full particulars of his property and income.

(2) The applicant shall serve a sealed copy of the originating summons on the respondent and shall annex thereto a copy of the affidavit in support, if one has been filed, and a notice of proceedings and acknowledgement of service in Form M30, and rule 2.10 shall apply to such an acknowledgement of service as if the references in paragraph (1) of that rule to Form M6 and in paragraph (2) to 14 days were, respectively, references to Form M30 and 31 days.

(3) Rules 2.59, 2.61, 2.62, 2.64(4), (6) and (7), 2.72(1) and (2) shall apply, with the necessary modifications, to an application for an order for financial relief under this rule as they apply to an application for ancillary relief made by notice in Form M13 and the court may order the attendance of any person for the purpose of being examined or cross-examined and the discovery and production of any document.

(4) An application for an interim order for maintenance under Article 18 of the Order of 1989 or an avoidance of transaction order under Article 27 of that Order may be made, unless the court otherwise directs, in the originating summons under paragraph (1) or by summons in accordance with rule 7.5 and an application for an order under the said Article 27 shall be supported by an affidavit, which may be the affidavit filed under paragraph (1), stating the facts relied on.

(5) If the respondent intends to contest the application he shall, within 28 days after the time limited for giving notice to defend, file an affidavit in answer to the application setting out the grounds on which he relies and shall serve a copy on the applicant.

(6) In respect of any application for an avoidance of transaction order the court may make such order as it is empowered to make by paragraph (3) and rule 2.61 shall apply, with the necessary modifications, to an application for an avoidance of transaction order as it applies to an avoidance of disposition order.

(7) Where the originating summons contains an application for an order under Article 26 of the Order of 1989 the applicant shall serve a copy on the landlord of the dwelling-house and he shall be entitled to be heard on the application.

(8) Where, in reliance on Article 26 of the Order of 1989, the court intends to make an order under Part II of Schedule 1 to that Order then, before making the order, the court shall cause notice of its intention to make the order to be given to the landlord of the dwelling-house and shall afford him an opportunity of being heard.

(9) An application for an order for financial relief under Part IV of the Order of 1989 or for an avoidance of transaction order shall be determined by the judge.

Application for an order under Article 28 of the Order of 1989 preventing a transaction

3.14

(1) An application to the High Court under Article 28 of the Order of 1989 for an order preventing a transaction shall be made by originating summons in Form M29 issued out of the Matrimonial Office and shall be supported by an affidavit by the applicant stating the facts relied on in support of the application.

(2) The applicant shall serve a sealed copy of the originating summons on the respondent and shall annex thereto a copy of the affidavit in support and a notice of proceedings and acknowledgement of service in Form M30, and rule 2.11 shall apply to such an acknowledgement of service as if the references in paragraph (1) of that rule to Form M6 and in paragraph (2) of that rule to 14 days were, respectively, references to Form M30 and 31 days.

(3) If the respondent intends to contest the application he shall within 28 days after the time limited for giving notice to defend, file an affidavit in answer to the application setting out the grounds on which he relies and shall serve a copy on the applicant.

(4) The application shall be determined by the judge.

(5) Rule 2.68 (except paragraph (3)) shall apply, with the necessary modifications, to the applications as if it were an application for ancillary relief.

PART IV — CHILDREN (NORTHERN IRELAND) ORDER 1995

Interpretation and application

4.1

(1) In this Part of and in Appendix 3 to these Rules, unless a contrary intention appears—

“the Allocation Order” means the Children (Allocation of Proceedings) Order (Northern Ireland) 1996[^f00021];

an Article or Schedule referred to by number means the Article or Schedule so numbered in the Order of 1995;

“an Article 8 order” has the same meaning as in Article 8(2);

“application” means an application made under or by virtue of the Order of 1995 or under these Rules and “applicant” shall be construed accordingly;

“authority” has the same meaning as in Article 2(2);

“child”, in relation to proceedings to which this Part applies— means, subject to sub-paragraph (b), a person under the age of 18 with respect to whom the proceedings are brought, and where the proceedings are under Schedule 1, also includes a person who has reached the age of 18;

“directions appointment” means a hearing for directions under rule 4.15;

“family care centre” means a county court which has been specified as a family care centre in the Allocation Order;

“guardian ad litem” means a guardian ad litem, appointed under Article 60, of the child with respect to whom the proceedings are brought;

“leave” includes permission and approval;

“parental responsibility” has the same meaning as in Article 6;

“Parties” means the respondents specified in column (iii) of Appendix 3 and the applicant;

“specified proceedings” has the same meaning as in Article 60(6) and Rule 4.3(2);

“welfare officer” means a person who has been asked to prepare a welfare report under Article 4.

(2) Except where the contrary intention appears, the provisions of this Part apply to proceedings in the High Court and a county court—

(a) on an application for an Article 8 order;

(b) on an application for a care order or supervision order under Article 50;

(c) on an application under Articles 7(1)(a), 7(4), 13(1), 16(6), 33, 44, 52(7), 53(2), 53(3), 53(4), 53(9), 55(1), 57(8)(b), 58(1), 58(2), 58(3), 58(4), 62(1), 62(12), 63, 64, 67(9), 69(1), 159(1), 163(1), 178(1);

(d) under Schedule 1, except, where financial relief is also sought by or on behalf of an adult;

(e) on an application under paragraph 6(3) of Schedule 3;

(f) on an application under paragraph 5(2) or 7(1) of Schedule 4; or

(g) on an application under paragraph 10(3) or 12(4) of Schedule 8.

Proceedings in chambers

4.2

Unless the court otherwise directs proceedings to which this Part applies shall be heard by a judge in chambers.

Matters prescribed for the purposes of the Order of 1995

4.3

(1) The parties to proceedings in which directions are given under Article 57(6) and any person named in such a direction, form the prescribed class for the purposes of Article 57(8)(b) (application to vary directions made with interim care or interim supervision order).

(2) The following proceedings are specified for the purposes of Article 60 in accordance with paragraph 6(i) thereof—

(a) proceedings under Article 33(1);

(b) proceedings under Article 44;

(d) proceedings under paragraph 6(3) of Schedule 3;

(e) appeals against the determination of proceedings of a kind set out in sub-paragraphs (a) to (d).

(3) The applicant for an order that has been made under Article 62(1) and the persons referred to in Article 62(11) may, in any circumstances, apply under Article 62(12) for a child assessment order to be varied or discharged.

(4) The following persons form the prescribed class for the purposes of Article 63(9)(b) (application to vary directions)—

(a) the parties to the application in which it is sought to vary the directions;

(b) the guardian ad litem;

(d) any person who is named in the directions.

Application for leave to commence proceedings

4.4

(1) Where the leave of the court is required to bring any proceedings to which this Part applies, the person seeking leave shall file—

(a) a written request for leave in Form C2 setting out the reasons for the application; and

(b) a draft of the application (being the documents referred to in rule 4.5(2)) for the making of which leave is sought together with sufficient copies for one to be served on each respondent.

(2) The documents referred to in paragraph (1) shall—

(a) in relation to an application to the High Court be filed in the Office of Care and Protection or, where rule 2.38 applies, in the Matrimonial Office;

(b) in relation to an application to a county court be filed in the county court office.

(3) On considering a request for leave filed under paragraph (1), the court shall—

(a) grant the request, whereupon the proper officer or chief clerk shall inform the person making the request of the decision, or

(b) direct that a date be fixed for the hearing of the request, whereupon the proper officer or chief clerk shall fix such a date and give such notice as the court directs to the person making the request and to such other persons as the court requires to be notified of the date so fixed.

(4) Where leave is granted to bring proceedings to which this Part applies the application shall proceed in accordance with rule 4.5 but paragraph (1)(a) of that rule shall not apply.

(5) In the case of a request for leave to bring proceedings under Schedule 1, the draft application under paragraph (1) shall be accompanied by a statement in Form C7A setting out the financial details which the person seeking leave believes to be relevant to the request and containing a declaration that it is true to the maker’s best knowledge and belief, together with sufficient copies for one to be served on each respondent.

Application

4.5

(1) Subject to paragraph (5), an applicant shall—

(a) file the documents referred to in paragraph (2) (which documents shall together be called “the application”) together with sufficient copies for one to be served on each respondent—

(i) in relation to an application to the High Court, in the Office of Care and Protection or, where rule 2.38 applies, in the Matrimonial Office;

(ii) in relation to an application to a county court in the county court office; and

(b) serve a copy of the application together with Form C3 and such (if any) of Forms C4 and C7A as are given to him under paragraph (3)(b) on each respondent such number of days prior to the date fixed under paragraph 3(a) as is specified for that application in column (ii) of Appendix 3.

(2) The documents to be filed under paragraph (1)(a) are—

(i) whichever is appropriate of Forms C1 or C2 and

(ii) such of the supplemental Forms C10 or C11 to C17 as may be appropriate, or

(b) where there is no appropriate form a statement in writing of the order sought,

and where the application is made in respect of more than one child, all the children shall be included in one application.

(3) On receipt of the documents filed under paragraph (1)(a) the proper officer or chief clerk shall—

(a) fix the date for a hearing or a directions appointment allowing sufficient time for the applicant to comply with paragraph (1)(b),

(b) endorse the date so fixed upon Form C3 and, where appropriate, Form C3A and

(c) return forthwith to the applicant the copies of the application and Form C7A if filed with it, together with Form C3 and such of Forms C3A and C4 as are appropriate.

(4) The applicant shall, at the same time as complying with paragraph (1)(b) serve Form C3A on the persons set out for the relevant class of proceedings in column (iv) of Appendix 3.

(5) In the case of proceedings under Schedule 1, the application under paragraph (1) shall be accompanied by a statement in Form C7A setting out the financial details which the applicant believes to be relevant to the application and containing a declaration that it is true to the maker’s best knowledge and belief, together with sufficient copies for one to be served on each respondent.

Withdrawal of application

4.6

(1) An application may be withdrawn only with leave of the court.

(2) Subject to paragraph (3), a person seeking leave to withdraw an application shall file and serve on the parties a written request for leave in Form C2 setting out the reasons for the request.

(3) The request under paragraph (2) may be made orally to the court if the parties and, if appointed, either the guardian ad litem or the welfare officer are present.

(4) Upon receipt of a written request under paragraph (2) the court shall—

(a) if—

(i) the parties consent in writing,

(ii) the guardian ad litem has had an opportunity to make representations, and

(iii) the court thinks fit,

grant the request, in which case the proper officer or chief clerk shall notify the parties, any guardian ad litem and any welfare officer of the granting of the request, or

(b) direct that a date be fixed for the hearing of the request in which case the proper officer or chief clerk shall give at least 7 days' notice to the parties, the guardian ad litem and the welfare officer, of the date fixed.

Transfer of proceedings

4.7

(1) Where an application is made, in accordance with Article 9 of the Allocation Order, for an order transferring proceedings from a family proceedings court or other court of summary jurisdiction following the refusal of that court to order such a transfer, the applicant shall—

(a) file the application in Form C2 with the chief clerk in the family care centre to which the proceedings are sought to be transferred, together with a copy of the certificate issued by the family proceedings court or other court of summary jurisdiction; and

(b) serve a copy of the documents mentioned in sub-paragraph (a) personally on all parties to the proceedings which it is sought to have transferred,

within 2 days after receipt by the applicant of the certificate.

(2) Within 2 days after receipt of the documents served under paragraph (1)(b) any party other than the applicant may file written representations.

(3) The court shall, not before the fourth day after the filing of the application under paragraph (1) unless the parties consent to earlier consideration, consider the application and either—

(a) grant the application whereupon the chief clerk shall inform the parties of that decision, or

(b) direct that a date be fixed for the hearing of the application, whereupon the chief clerk shall fix such a date and give not less than 1 day’s notice to the parties of the date so fixed.

(4) A copy of an order transferring proceedings to a family care centre in accordance with Article 9 of the Allocation Order, shall be sent by the chief clerk to the court from which the proceedings are transferred.

(5) Where proceedings are transferred to a family care centre in accordance with Article 5 or 8 of the Allocation Order the family care centre shall consider whether to transfer those proceedings to the High Court in accordance with Article 10 of that Order and either—

(a) determine that an order for such transfer need not be made;

(b) make such an order for transfer;

(c) order that a date be fixed for the hearing of the question whether such an order for transfer should be made, whereupon the chief clerk shall give such notice to the parties as the court directs of the date so fixed, or

(d) invite the parties to make written representations within a specified period, as to whether such an order should be made; and upon receipt of the representations the court shall act in accordance with sub-paragraphs (a), (b) or (c).

(6) Where proceedings are transferred to the High Court under paragraph (5) any relevant documentation shall be sent by the chief clerk to the Office of Care and Protection.

(7) The proper officer shall notify the parties of an order transferring proceedings from the High Court in accordance with Article 13 or 14 of the Allocation Order and a copy of the order shall be sent to the court to which the proceedings are transferred.

(8) The chief clerk shall notify the parties of an order transferring proceedings in accordance with Article 11 or 12 of the Allocation Order and a copy of the order shall be sent to the court to which the proceedings are transferred.

(9) An order under this rule transferring proceedings in accordance with the Allocation Order shall be in Form C43 and shall be served on the parties by the proper officer or chief clerk as the case may be.

Parties

4.8

(1) The respondents to proceedings to which this Part applies shall be those persons set out in the relevant entry in column (iii) of Appendix 3.

(2) In proceedings to which this Part applies a person may file a request in Form C2 that he or another person—

(a) be joined as a party, or

(b) cease to be a party.

(3) On considering a request under paragraph (2) the court shall, subject to paragraph (4)—

(a) grant it without a hearing or representations, save that this shall be done only in the case of a request under paragraph (2)(a), whereupon the proper officer or chief clerk shall inform the parties and the person making the request of that decision, or

(b) order that a date be fixed for the consideration of the request, whereupon the proper officer or chief clerk shall give notice of the date so fixed, together with a copy of the request—

(i) in the case of a request under paragraph (2)(a), to the applicant, and

(ii) in the case of a request under paragraph (2)(b), to the parties, or

(c) invite the parties or any of them to make written representations, within a specified period, as to whether the request should be granted; and upon the expiry of the period the court shall act in accordance with sub-paragraph (a) or (b).

(4) Where a person with parental responsibility requests that he be joined under paragraph (2)(a), the court shall grant his request.

(5) In proceedings to which this Part applies the court may direct—

(a) that a person who would not otherwise be a respondent under these rules be joined as a party to the proceedings, or

(b) that a party to the proceedings cease to be a party.

Service under this Part of the Rules

4.9

(1) In proceedings to which this Part applies, the court may direct that a requirement of these rules to serve a document shall not apply or shall be effected in such manner as the court directs.

(2) Subject to the requirement in rule 4.7(1)(b) of personal service where service of a document is required under this Part it may be effected—

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

(i) by delivering it to him personally, or

(ii) by delivering it at, or by sending it by first class post to his residence or his last known residence, or

(b) if the person to be served is known by the person serving to be acting by solicitor—

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

(ii) where the solicitor’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 FAX (as defined by R.S.C. Order 1 rule 3(1)) in accordance with the provisions of R.S.C. Order 65 rule 5(2A) to the solicitor’s office.

(3) Where a child who is a party to proceedings to which this Part applies is required by these rules to serve a document, service shall be effected by—

(a) the solicitor acting for the child, or

(b) where there is no such solicitor, the guardian ad litem, or

(4) Service of any document on a child shall, subject to any direction of the court, be effected by service on—

(a) the solicitor acting for the child, or

(b) where there is no such solicitor, the guardian ad litem, or

(5) Where the court refuses leave under paragraph (3)(c) it shall give a direction under paragraph (1).

(6) A document shall, unless the contrary is proved, 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 paragraph (2)(b)(ii), on the second business day after the day on which it is left at the document exchange.

(7) At or before the first directions appointment in, or hearing of, proceedings to which this Part applies the applicant shall file a statement that service of—

(a) a copy of the application and other documents referred to in rule 4.5(1)(b) has been effected on each respondent, and

(b) notice of the proceedings has been given under rule 4.5(4);

and the statement shall indicate—

(i) the manner, date, time and place of service, or

(ii) where service was effected by post, the date, time and place of posting.

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

Answer to application

4.10

(1) Within 14 days of service of an application for an Article 8 order or an application under Schedule 1, each respondent shall file and serve on the other parties an acknowledgement of the application in Form C4.

(2) Following service of an application to which this Part applies, other than an application under rule 4.4 or for an Article 8 order, a respondent may, subject to paragraph (3) file a written answer, which shall be served on the other parties.

(3) An answer under paragraph (2) shall, except in the case of an application under Articles 44, 50, 53, 57, 62, 63, 64, 67 and 69 be filed and served, not less than 2 days before the date fixed for the hearing of the application.

Appointment of guardian ad litem

4.11

(1) As soon as practicable after the commencement of specified proceedings, or the transfer of such proceedings to the court, the court shall appoint a guardian ad litem, unless—

(a) such an appointment has already been made by the court which made the transfer and is subsisting, or

(b) the court considers that such an appointment is not necessary to safeguard the interests of the child.

(2) At any stage in specified proceedings a party may apply, without notice to the other parties unless the court directs otherwise, for the appointment of a guardian ad litem.

(3) The court shall grant an application under paragraph (2) unless it considers such an appointment not to be necessary to safeguard the interests of the child, in which case it shall give its reasons; and a note of such reasons shall be taken.

(4) At any stage in specified proceedings the court may, of its own motion, appoint a guardian ad litem.

(5) The proper officer or chief clerk shall, as soon as practicable, notify the parties and any welfare officer of an appointment under this rule or, as the case may be, of a decision not to make such an appointment.

(6) Upon the appointment of a guardian ad litem the proper officer or chief clerk shall, as soon as practicable, notify him of the appointment and serve on him copies of the application and of documents filed under rule 4.18(1).

(7) A guardian ad litem appointed from a panel established by regulations made under Article 60(7) shall not—

(a) be a member, officer or servant of a Board or Trust which, or an authorised person (within the meaning of Article 49(2)) who, is a party to the proceedings;

(b) be, or have been, a member, officer or servant of a Board or Trust or voluntary organisation (within the meaning of Article 74(1)) who has been directly concerned in that capacity in arrangements relating to the care, accommodation or welfare of the child during the 5 years prior to the commencement of the proceedings;

(c) be a serving probation officer (except that a probation officer who has not in that capacity been previously concerned with the child or his family and who is employed part-time may, when not engaged in his duties as a probation officer, act as a guardian ad litem).

(8) When appointing a guardian ad litem the court may give consideration to appointing anyone who has previously acted as guardian ad litem of the same child.

(9) The appointment of a guardian ad litem under this rule shall continue for such time as is specified in the appointment or until terminated by the court.

(10) When terminating an appointment in accordance with paragraph (9), the court shall give its reasons in writing for doing so.

(11) Where the court appoints a guardian ad litem in accordance with this rule or refuses to make such an appointment or terminates an appointment the court shall record the appointment refusal or termination in Form C41.

Powers and duties of guardian ad litem

4.12

(1) In carrying out his duty under Article 60(2), the guardian ad litem shall have regard to the principle set out in Article 3(2) and the matters set out in Article 3(3)(a) to (f) as if for the word “court” in that section there were substituted the words “guardian ad litem”.

(2) The guardian ad litem shall—

(a) appoint a solicitor to represent the child unless such a solicitor has already been appointed, and

(b) give such advice to the child as is appropriate having regard to his understanding and, subject to rule 4.13(1)(a), instruct the solicitor representing the child on all matters relevant to the interests of the child, including possibilities for appeal, arising in the course of the proceedings.

(3) Where the guardian ad litem is the Official Solicitor, paragraph 2(a) shall not require him to appoint a solicitor for the child if he intends to act as the child’s solicitor in the proceedings, unless—

(a) the child wishes to instruct a solicitor direct; and

(b) the Official Solicitor or the court considers that he is of sufficient understanding to do so.

(4) Where it appears to the guardian ad litem that the child—

(a) is instructing his solicitor direct, or

(b) intends to, and is capable of, conducting the proceedings on his own behalf,

he shall so inform the court and thereafter—

(i) shall perform all of his duties set out in this rule, other than duties under paragraph (2)(a) and such other duties as the court may direct,

(ii) shall take such part in the proceedings as the court may direct, and

(iii) may, with leave of the court, have legal representation in his conduct of those duties.

(5) The guardian ad litem shall, unless excused by the court, attend all directions appointments in and hearings of the proceedings and shall advise the court on the following matters—

(a) whether the child is of sufficient understanding for any purpose including the child’s refusal to submit to a medical or psychiatric examination or other assessment that the court has power to require, direct or order;

(b) the wishes of the child in respect of any matter relevant to the proceedings, including his attendance at court;

(d) the appropriate timing of the proceedings or any part of them;

(e) the options available to it in respect of the child and the suitability of each such option including what order should be made in determining the application;

(f) any other matter concerning which the court seeks his advice or concerning which he considers that the court should be informed.

(6) The advice given under paragraph (5) may, subject to any order of the court, be given orally or in writing; and if the advice be given orally, a note of it shall be taken.

(7) The guardian ad litem shall, where practicable, notify any person whose joinder as a party to those proceedings would be likely, in the guardian ad litem’s opinion, to safeguard the interests of the child, of that person’s right to apply to be joined under rule 4.8(2) and shall inform the court—

(a) of any such notification given,

(b) of anyone whom he attempted to notify under this paragraph but was unable to contact, and

(8) The guardian ad litem shall, unless the court otherwise directs, not less than 7 days before the date fixed for the final hearing of the proceedings, file a written report advising on the interests of the child; and the proper officer or chief clerk shall, as soon as practicable, serve a copy of the report on the parties.

(9) The guardian ad litem shall serve and accept service of documents on behalf of the child in accordance with rule 4.9(2)(b) and (3)(b) and, where the child has not himself been served, and has sufficient understanding, advise the child of the contents of any document so served.

(10) The guardian ad litem shall make such investigations as may be necessary for him to carry out his duties and shall, in particular—

(a) contact or seek to interview such persons as he thinks appropriate or as the court directs,

(b) if he inspects records of the kinds referred to in Article 61, bring to the attention of the court and such other persons as the court may direct all such records and documents which may, in his opinion, assist in the proper determination of the proceedings, and

(c) obtain such professional assistance as is available to him which he thinks appropriate or which the court directs him to obtain.

(11) In addition to his duties under other paragraphs of this rule, the guardian ad litem shall provide to the court such other assistance as it may require.

(12) A party may question the guardian ad litem about oral or written advice tendered by him to the court under this rule.

Solicitor for child

4.13

(1) A solicitor appointed under Article 60(3) or in accordance with rule 4.12(2)(a) shall represent the child—

(a) in accordance with instructions received from the guardian ad litem (unless the solicitor considers, having taken into account the views of the guardian ad litem and any direction of the court under rule 4.12(4), that the child wishes to give instructions which conflict with those of the guardian ad litem and that he is able, having regard to his understanding, to give such instructions on his own behalf in which case he shall conduct the proceedings in accordance with instructions received from the child) or

(b) where no guardian ad litem has been appointed for the child and the condition in Article 60(4)(b) is satisfied, in accordance with instructions received from the child, or

(2) A solicitor appointed under Article 60(3) or in accordance with rule 4.12(2)(a) shall serve and accept service of documents on behalf of the child in accordance with rule 4.9(2)(a) and (3)(a), and, where the child has not himself been served and has sufficient understanding, advise the child of the contents of any document so served.

(3) Where the child wishes an appointment of a solicitor under Article 60(3) or in accordance with rule 4.12(2)(a) to be terminated, he may apply to the court for an order terminating the appointment; and the solicitor and the guardian ad litem shall be given an opportunity to make representations.

(4) Where the guardian ad litem wishes an appointment of a solicitor under Article 60(3) to be terminated, he may apply to the court for an order terminating the appointment; and the solicitor and, if he is of sufficient understanding, the child, shall be given an opportunity to make representations.

(5) When terminating an appointment in accordance with paragraph (3) or (4), the court shall give its reasons for so doing, a note of which shall be taken.

(6) Where the court appoints a solicitor under Article 60(3) or refuses to make such an appointment or terminates an appointment, the court or the proper officer or chief clerk shall record the appointment refusal or termination in Form C42.

Welfare officer

4.14

(1) Where the court has directed that a written report be made by a welfare officer, the report shall be filed at or by such time as the court directs or, in the absence of such a direction, at least 14 days before a relevant hearing; and the proper officer or chief clerk shall, as soon as practicable, serve a copy of the report on the parties and any guardian ad litem.

(2) In paragraph (1), a hearing is relevant if the proper officer or chief clerk has given the welfare officer notice that his report is to be considered at it.

(3) After the filing of a report by a welfare officer, the court may direct that the welfare officer attend any hearing at which the report is to be considered; and

(a) except where such a direction is given at a hearing attended by the welfare officer, the proper officer or chief clerk shall inform the welfare officer of the direction; and

(b) at the hearing at which the report is considered any party may question the welfare officer about his report.

(4) This rule is without prejudice to any power to give directions under rule 4.15.

Directions

4.15

(1) In this rule, “party” includes the guardian ad litem and, where a request or a direction concerns a report under Article 4, the welfare officer.

(2) In proceedings to which this Part applies the court may, subject to paragraph (3), 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 these rules or by other rules of court, to be done;

(d) the appointment of a guardian ad litem, whether under Article 60 or otherwise, or of a solicitor under Article 60(3);

(e) the service of documents;

(f) the submission of evidence including experts' reports;

(g) the preparation of welfare reports under Article 4;

(h) the transfer of the proceedings to another court;

(i) consolidation with other proceedings.

(3) Directions under paragraph (2) may be given, varied or revoked either—

(a) of the court’s own motion having given the parties notice of its intention to do so and an opportunity to attend and be heard or to make written representations,

(b) on the written request in Form C2 of a party specifying the direction which is sought, filed and served on the other parties, or

(c) on the written request in Form C2 of a party specifying the direction which is sought, to which the other parties consent and which they or their representatives have signed.

(4) In an urgent case the request under paragraph (3)(b) may, with the leave of the court, be made—

(a) orally, or

(b) without notice to the parties, or

(5) On receipt of a written request under paragraph (3)(b) the proper officer or chief clerk shall fix a date for the hearing of the request and give not less than 2 days' notice in Form C3 to the parties of the date so fixed.

(6) On considering a request under paragraph (3)(c) the court shall either—

(a) grant the request, whereupon the proper officer or chief clerk shall inform the parties of the decision, or

(b) direct that a date be fixed for the hearing of the request, whereupon the proper officer or chief clerk shall fix such a date and give not less than 2 days' notice in Form C3 to the parties of the date so fixed.

(7) A party may apply in accordance with paragraph 3(b) or (c) for an order to be made under Article 11(3) or, if he is entitled to apply for such an order, under Article 57(1) and paragraphs (4), (5) and (6) shall apply accordingly.

(8) Where a court is considering making, of its own motion, an Article 8 order, or an order under Article 50, 53 or 57, the power to give directions under paragraph (2) shall apply.

(9) Directions of a court which are still in force immediately prior to the transfer of proceedings to which this Part applies to another court shall continue to apply following the transfer, subject to any changes of terminology which are required to apply those directions to the court to which the proceedings are transferred, unless varied or discharged by directions under paragraph (2).

(10) The court shall take a note of the giving, variation or revocation of a direction under this rule and serve, as soon as practicable, a copy of the note on any party who was not present at the giving, variation or revocation.

Timing of proceedings

4.16

(1) Where these rules or other rules of court provide a time period within which or by which a certain act is to be performed in the course of proceedings to which this Part applies, that period may not be extended otherwise than by direction of the court under rule 4.15.

(2) At the—

(a) postponement or adjournment of any hearing or directions appointment in the course of proceedings to which this Part applies, or

(b) conclusion of any such hearing or directions appointment other than one at which the proceedings are determined, or so soon thereafter as is practicable, the court shall fix a date upon which the proceedings shall come before the court again for such purposes as the court directs; and the proper officer or chief clerk shall give notice to the parties, and to any guardian ad litem or welfare officer of the date fixed.

(3) At the transfer to a court of proceedings to which this Part applies the court to which the proceedings are transferred shall as soon as possible fix a date upon which the proceedings shall come before the court for such purposes as the court directs; and the proper officer or chief clerk shall give notice to the parties and to any guardian ad litem or welfare officer of the date so fixed.

Attendance at a directions appointment and hearing

4.17

(1) Subject to paragraph (2), a party shall attend a directions appointment of which he has been given notice in accordance with rule 4.15(5) unless the court otherwise directs.

(2) Proceedings or any part of them shall take place in the absence of any party, including the child, if—

(a) the court considers it in the interests of the child, having regard to the matters to be discussed or the evidence likely to be given, and

(b) the party is represented by a guardian ad litem or solicitor;

and when considering the interests of the child under sub-paragraph (a) the court shall give the guardian ad litem, the solicitor for the child and, if he is of sufficient understanding, the child an opportunity to make representations.

(3) Subject to paragraph (4), where at the time and place appointed for a hearing or directions appointment the applicant appears but one or more of the respondents do not, the court may proceed with the hearing or appointment.

(4) The court shall not begin to hear an application in the absence of a respondent unless—

(a) it is proved to the satisfaction of the court that he received reasonable notice of the date of the hearing; or

(b) the court is satisfied that the circumstances of the case justify proceeding with the hearing.

(5) Where, at the time and place appointed for a hearing or directions appointment one or more of the respondents appear but the applicant does not, the court may refuse the application or, if sufficient evidence has previously been received, proceed in the absence of the applicant.

(6) Where at the time and place appointed for a hearing or directions appointment neither the applicant nor any respondent appears, the court may refuse the application.

Documentary evidence

4.18

(1) Subject to paragraphs (4) and (5), in proceedings to which this Part applies a party shall file and serve on the parties, any welfare officer and any guardian ad litem of whose appointment he has been given notice under rule 4.11(5)—

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

(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—

(a) the initials and surname of the person making the statement,

(b) the number of the statement in relation to the maker,

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

(b) copies of any documents, including experts' reports, upon which the party intends to rely at a hearing of, or a directions appointment in, those proceedings,

at or by such time as the court directs or, in the absence of a direction, before the hearing or appointment.

(2) A party may, subject to any direction of the court about the timing of statements under this rule, file and serve on the parties a statement which is supplementary to a statement served under paragraph (1).

(3) At a hearing or a directions appointment a party may not, without the leave of the court—

(a) adduce evidence, or

(b) seek to rely on a document,

in respect of which he has failed to comply with the requirements of paragraph (1).

(4) In proceedings for an Article 8 order a party shall—

(a) neither file nor serve any document other than as required or authorised by these rules, and

(b) in completing a form prescribed by these rules, neither give information, nor make a statement, which is not required or authorised by that form,

without the leave of the court.

(5) In proceedings for an Article 8 order no statement or copy may be filed under paragraph (1) until such time as the court directs.

Expert evidence — examination of child

4.19

(1) No person may, without the leave of the court, cause the child to be medically or psychiatrically examined, or otherwise assessed, for the purpose of the preparation of expert evidence for use in the proceedings.

(2) An application for leave under paragraph (1) shall be made in Form C2 and shall, unless the court otherwise directs be served on all parties to the proceedings and on the guardian ad litem.

(3) Where the leave of the court has not been given under paragraph (1), no evidence arising out of an examination or assessment to which that paragraph applies may be adduced without the leave of the court.

Amendment

4.20

(1) Subject to rule 4.18(2) a document which has been filed or served in proceedings to which this Part applies, may not be amended without the leave of the court which shall, unless the court otherwise directs, be requested in writing.

(2) On considering a request for leave to amend a document the court shall either—

(a) grant the request, whereupon the proper officer or chief clerk shall inform the person making the request of that decision, or

(b) invite the parties or any of them to make representations, within a specified period, as to whether such an order should be made.

(3) A person amending a document shall file it and serve it on those persons on whom it was served prior to amendment and the amendments shall be identified.

Hearing

4.21

(1) The court may give directions as to the order of speeches and evidence at a hearing or directions appointment, in the course of proceedings to which this Part applies.

(2) Subject to directions under paragraph (1), at a hearing of, or directions appointment in, proceedings to which this Part applies, the parties and the guardian ad litem shall adduce their evidence in the following order—

(a) the applicant,

(b) any party with parental responsibility for the child,

(d) the guardian ad litem,

(e) the child, if he is a party to the proceedings and there is no guardian ad litem.

(3) After the final hearing of proceedings to which this Part applies, the court shall deliver its judgment as soon as is practicable.

(4) When making an order or when refusing an application, the court shall either—

(a) issue a written judgment;

(b) cause the judgment to be recorded by mechanical or electronic means; or

(5) An order made in proceedings to which this Part applies shall be recorded either in the appropriate form in Appendix 1 to these rules or, where there is no such form, in writing.

(6) A copy of an order made in accordance with paragraph (5) shall, as soon as practicable after it has been made, be served by the proper officer or chief clerk on the parties to the proceedings in which it was made and on any person with whom the child is living.

Attachment of penal notice to Article 8 order

4.22

C.C.R. Order 57 rule 7 shall apply to Article 8 orders as if for paragraph (1) of that rule there were substituted the following—

(1) In the case of an Article 8 order (within the meaning of Article 8(2) of the Children (Northern Ireland) Order 1995) enforceable by committal order under rule 5 the judge or the district judge may, on the application of the person entitled to enforce the order, direct the chief clerk to issue a copy of the order endorsed with a notice in Form 270 and the copy so endorsed shall be served on the respondent personally and no copy of the order shall be issued with any such notice endorsed save in accordance with such direction.

Appeals

4.23

(1) Where an appeal lies—

(a) to the High Court; or

(b) to a county court specified in the Allocation Order for the purposes of Article 166(4)(a) of the Order of 1995 against the making or refusal to make an order under the Order of 1995—

it shall be made in accordance with the following provisions and references to “the court below” are references to the court from which the appeal lies.

(2) The appellant shall file and serve on the parties to the proceedings in the court below, and on any guardian ad litem—

(a) notice of the appeal in writing, setting out the grounds upon which he relies;

(b) a certified copy of the summons or application and of the order appealed against, and of any order staying its execution;

(3) The notice of appeal shall be filed and served in accordance with paragraph (2)(a)—

(a) within 14 days after the determination against which the appeal is brought, or

(b) in the case of an appeal against an order under Article 57(1), within 7 days after the making of the order, or

(4) The documents mentioned in paragraph (2)(b) to (c) shall, subject to any direction of the court to which the appeal is to be brought, be filed and served as soon as practicable after the filing and service of the notice of appeal under paragraph (2)(a).

(5) The applicant shall also send a copy of the notice of appeal to the chief clerk or, as the case may be, to the clerk of petty sessions of the court below.

(6) Subject to paragraph (7), a respondent who wishes—

(a) to contend on the appeal that the decision of the court below should be varied, either in any event or in the event of the appeal being allowed in whole or in part, or

(b) to contend that the decision of the court below should be affirmed on grounds other than those relied upon by that court, or

shall, within 14 days of receipt of notice of the appeal, file and serve on all other parties to the appeal a notice in writing, setting out the grounds upon which he relies.

(7) No notice under paragraph (5) may be filed or served in an appeal against an order under Article 57.

Confidentiality of documents

4.24

(1) Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies shall be disclosed, other than to—

(a) a party,

(b) the legal representative of a party,

(d) the Legal Aid Department, or

(e) a welfare officer

without leave of the judge.

(2) An application for leave shall be made in Form C2 setting out the reasons for the request.

(3) Nothing in this rule shall prevent the notification by the court or the proper officer or chief clerk of a direction under Article 56(1) to the authority concerned.

4.25

Consent for the purposes of Article 16(3) or 33(3)(c) or (d) shall be given either—

(a) orally in court, or

(b) in writing to the court signed by the person giving his consent.

Secure accommodation

4.26

In proceedings under Article 44, the court shall, if practicable, arrange for copies of all written reports before it to be made available before the hearing to—

(a) the applicant,

(b) the parent or guardian of the child,

(d) the guardian ad litem; and

(e) the child, unless the court otherwise directs

and copies of such reports may, if the court considers it desirable, be shown to any person who is entitled to notice of the proceedings in accordance with these rules.

Investigation under Article 56

4.27

(1) This rule applies where a direction is given to an appropriate authority by the High Court or a county court under Article 56(1).

(2) On giving a direction the court shall adjourn the proceedings and shall record the direction in Form C35.

(3) A copy of the direction recorded under paragraph (2) shall, as soon as practicable after the direction is given, be served by the proper officer or chief clerk on the parties to the proceedings in which the direction is given and, where the appropriate authority is not a party, on that authority.

(4) When serving the copy of the direction on the appropriate authority the proper officer or chief clerk shall also serve copies of such of the documentary evidence which has been, or is to be, adduced in the proceedings as the court may direct.

(5) Where an authority informs the court of any of the matters set out in Article 56(3)(a) to (c) it shall do so in writing.

PART V — APPEALS

Appeal from a divorce county court to the Court of Appeal

5.1

R.S.C. Order 58 rule 4 and Order 59 shall apply with the necessary modifications to an appeal to the Court of Appeal under Article 48(9) of the Order of 1978[^f00022] or Article 40(2) of or paragraph 10 of Schedule 1 to the Order of 1989 from a decree or order of a judge in divorce county court proceedings as if the reference to the High Court in Order 59 rule 10(1) were a reference to a divorce county court.

Appeal from the district judge

5.2

(1) C.C.R. Order 14 rule 1(1)(f) (which enables the judge to vary or rescind an order by the district judge in the course of proceedings) shall not apply to an order or decision made or given by the district judge in family proceedings in a county court but any party may appeal from such an order or decision to a judge on notice filed within 5 days after the order or decision was made or given and served not later than 2 clear days before the day fixed for hearing of the appeal, which shall be heard in chambers unless the judge otherwise orders.

(2) Except so far as the court may otherwise order, an appeal under paragraph (1) shall not operate as a stay of proceedings on the order or decision appealed from.

PART VI — DISABILITY

Interpretation

6.1

(1) In this Part—

“person under disability” means a person who is a minor or a person who by reason of mental disorder within the meaning of the Mental Health (Northern Ireland) Order 1986[^f00023] is incapable of managing and administering his property and affairs.

(2) So far as they relate to minors who are the subject of applications the provisions of this Part shall not apply to proceedings which are specified proceedings within the meaning of Article 60(6) of the Order of 1995 and this Part shall have effect subject to the said Article 60(6) and Part IV.

(3) Rule 6.3 shall apply only to proceedings under the Order of 1995.

Person under disability must sue by next friend etc

6.2

(1) A person under disability may begin and prosecute any family proceedings by his next friend and may defend any such proceedings by his guardian ad litem and, except as otherwise provided by this rule, it shall not be necessary for a guardian ad litem to be appointed by the court.

(2) No person’s name shall be used in any proceedings as next friend of a person under disability unless he is the Official Solicitor or the documents mentioned in paragraph (6) have been filed.

(3) Where the disability of a person who is entitled to defend any family proceedings is not solely due to minority, the Official Solicitor shall, if he consents, be guardian ad litem; but at any stage of the proceedings an application may be made (on not less than 4 days' notice to the Official Solicitor, if he has consented to act) for the appointment of some other person as guardian; and there shall be filed in support of any application under this paragraph the documents mentioned in paragraph (6).

(4) Where a petition, answer, application or originating summons has been served on a person whom there is reasonable ground for believing to be a person under disability and no notice of intention to defend has been given or answer or affidavit in answer filed on his behalf, the party at whose instance the document was served shall, before taking any further step in the proceedings, apply to the Master for directions as to whether a guardian ad litem should be appointed to act for that person in the cause, and on any such application the Master may, if he considers it necessary in order to protect the interest of the person served, order that some proper person be appointed his guardian ad litem.

(5) No notice of intention to defend shall be given, or answer or affidavit in answer filed (by or on behalf of a person under disability) unless the person giving the notice or filing the answer or affidavit—

(a) is the Official Solicitor or, in a case in which paragraph (3) applies, is the Official Solicitor or has been appointed by the court to be guardian ad litem; or

(b) in any other case, has filed the documents mentioned in paragraph (6).

(6) The documents referred to in paragraphs (2), (3) and (5) are—

(a) a written consent to act by the proposed next friend or guardian ad litem;

(b) a certificate by the solicitor acting for the person under disability—

(i) that he knows or believes that the person to whom the certificate relates is a person under disability stating the grounds of his knowledge or belief, and

(ii) that the person named in the certificate as next friend or guardian ad litem has no interest in the cause or matter in question adverse to that of the person under disability and is a proper person to be next friend or guardian.

Certain minors may sue without next friend etc

6.3

(1) Where a person entitled to begin, prosecute or defend any proceedings to which this rule applies, is a minor to whom this Part applies, he may subject to paragraph (3), begin, prosecute or defend, as the case may be, such proceedings without a next friend or guardian ad litem—

(a) where he has obtained the leave of the court for that purpose; or

(b) where a solicitor—

(i) considers that the minor is able, having regard to his understanding, to give instructions in relation to the proceedings; and

(ii) has accepted instructions from the minor to act for him in the proceedings and, where the proceedings have begun, is so acting.

(2) A minor shall be entitled to apply for the leave of the court under paragraph (1)(a) without a next friend or guardian ad litem either—

(a) by filing a written request for leave setting out the reasons for the application, or

(b) by making an oral request for leave at any hearing in the proceedings.

(3) On considering a request for leave filed under paragraph (2)(a), the court shall either—

(a) grant the request, whereupon the proper officer or chief clerk shall communicate the decision to the minor and, where the leave relates to the prosecution or defence of existing proceedings, to the other parties to those proceedings, or

(b) direct that the request be heard ex parte, whereupon the proper officer or chief clerk shall fix a date for such a hearing and give to the minor making the request such notice of the date so fixed as the court may direct.

(4) Where a minor has a next friend or guardian ad litem in proceedings and the minor wishes to prosecute or defend the remaining stages of the proceedings without a next friend or guardian ad litem, the minor may apply to the court for leave for that purpose and for the removal of the next friend or guardian ad litem; and paragraph (2) shall apply to the application as if it were an application under paragraph (1)(a).

(5) On considering a request filed under paragraph (2) by virtue of paragraph (4), the court shall either—

(a) grant the request, whereupon the proper officer or chief clerk shall communicate the decision to the minor and next friend or guardian ad litem concerned and to all other parties to the proceedings, or

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