Magistrates' Courts (Domestic Proceedings) Rules (Northern Ireland) 1996

Made: 25th July 1996

Coming into operation: 4th November 1996

The Lord Chancellor, in exercise of the powers conferred on him by Article 13 of the Magistrates' Courts (Northern Ireland) Order 1981[^f00001] and Articles 8(8), 18(8), 18(9), 21(4), 25(1) and 26(2) of the Domestic Proceedings (Northern Ireland) Order 1980[^f00002] on the advice of the Magistrates' Courts Rules Committee and after consultation with the Lord Chief Justice hereby makes the following Rules:—

Citation, commencement and interpretation

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• (1) These rules may be cited as the Magistrates' Courts (Domestic Proceedings) Rules (Northern Ireland) 1996 and shall come into operation on 4th November 1996.

• (2) In these rules—

• (a) “the Order” means the Domestic Proceedings (Northern Ireland) Order 1980 and any reference to an Article by number is a reference to that Article as numbered in the Order;

• (aa) “the 1981 Order” means the Magistrates' Courts (Northern Ireland) Order 1981;

• (ab) “the Order of 1998” means the Family Homes and Domestic Violence (Northern Ireland) Order 1998;

• (ac) “the Act of 2004” means the Civil Partnership Act 2004;

• (b) “the Order Book” means the Order Book kept under Rule 19 of the Magistrates' Courts Rules (Northern Ireland) 1984[^f00003];

• (bb) “a means of payment order” means an order made in exercise of the powers conferred on the court by Article 85(3) of the 1981 Order;

• (c) any reference to a form is a reference to a form in Schedule 1 and includes a reference to a form to the same effect with such variations as the circumstances may require;

• (d) “first class post” means first class post which has been pre-paid or in respect of which pre-payment is not required.

• (3) The Magistrates' Courts Rules (Northern Ireland) 1984 shall have effect subject to the provisions of these Rules.

Revocation and saving

2

• (1) Subject to paragraph (2) the Rules set out in Schedule 2 are hereby revoked.

• (2) Nothing in these rules shall affect any proceedings pending (within the meaning of paragraph 1 of Schedule 8 to the Children (Northern Ireland) Order 1995[^f00004]) immediately before these rules come into operation and accordingly the Rules set out in Schedule 2 shall continue to apply in relation to such proceedings.

Application under Article 4

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• (1) An application by way of complaint to a justice of the peace or clerk of petty sessions for an order under Article 4 of the Order or Part 1 of Schedule 16 to the Act of 2004 may be made orally specifying the type of order sought and the ground or grounds on which the application is made.

• (2) Where an application under paragraph (c) or (d) of Article 4 alleges adultery or such behaviour by the respondent that the applicant cannot reasonably be expected to live with the respondent, particulars of the adultery or alleged behaviour shall not be stated in the summons, but, where the respondent or his solicitor, in writing, requests any such particulars, the applicant shall forthwith furnish particulars, in writing, to the respondent or his solicitor and to the clerk of petty sessions.

• (2A) Where an application under paragraph 1(c) of Schedule 16 to the Act of 2004 alleges such behaviour by the respondent that the applicant cannot reasonably be expected to live with the respondent, particulars of the alleged behaviour shall not be stated in the summons, but, where the respondent or his solicitor, in writing, requests any such particulars, the applicant shall forthwith furnish particulars, in writing to the respondent or his solicitor and to the clerk of petty sessions.

• (3) A summons issued in consequence of such an application shall be in Form D1 or Form D1A, as the case may be, and shall be prepared in triplicate and a copy served on the respondent.

Application for order under Article 8 (orders for payments agreed by parties)

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• (1) An application by way of complaint to a justice of the peace or clerk of petty sessions for an order under Article 8 of the Order or Part 2 of Schedule 16 to the Act of 2004 may be made orally specifying the type or types of financial provision applied for and the amount of any payment to be made thereunder.

• (2) A summons issued in consequence of such an application shall be in Form D2 and shall be prepared in triplicate and a copy served on the respondent.

• (3) For the purposes of Article 8(9)(a) and (b) of the Order or paragraph 11(2)(a) and (b) of Schedule 16 to the Act of 2004 evidence of the consent of the respondent to the making of the order and of the financial resources of the respondent shall be proved by way of a written statement in Form D3 signed by the respondent in the presence of one person from the persons described in paragraph (5) below, according to where the statement is signed.

• (4) For the purposes of Article 8(9)(c) of the Order or paragraph 11(2)(c) of Schedule 16 to the Act of 2004 evidence of the financial resources of the child shall be proved by way of a written statement in Form D3A signed by the respondent, or, in an appropriate case, the child, in the presence of one person from the persons described in paragraph (5) below, according to where the statement is signed.

• (5) A written statement under paragraph (3) or (4) above shall be signed in the presence of one of the following persons:—

• (a) in Northern Ireland—

• a justice of the peace or clerk of petty sessions;

• (b) in England and Wales—

• a justice of the peace or justice’s clerk;

• (c) in Scotland—

• a justice of the peace or sheriff;

• (d) outside the United Kingdom—

• (i) any person for the time being authorised by law in the place where the document is executed to administer an oath for any judicial or other legal purpose;

• (ii) a British Consular Officer;

• (iii) a notary public, or

• (iv) if the person executing the document is serving in any of the regular armed Forces of the Crown, an officer holding a commission in any of those Forces.

• (6) For the purposes of the said Article 8(9) of the Order or paragraph 11 of Schedule 16 to the Act of 2004 a written statement purporting to be signed and witnessed in accordance with paragraph (3) or (4) shall be admissible as evidence without further proof of the signature of the respondent or of the witness, or, in the case of a statement in Form D3A which the child has signed, the child or of the witness, and shall be deemed to have been so signed and witnessed on the date and at the place specified in the document, unless the contrary is proved.

Application for order under Article 9 (orders for payments where parties are living apart by agreement)

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• (1) An application by way of complaint to a justice of the peace or clerk of petty sessions for an order under Article 9 of the Order or Part 3 of Schedule 16 to the Act of 2004 may be made orally specifying the aggregate amount of the payments made during the period of three months immediately preceding the date of the making of the application and the type of order sought.

• (2) A summons issued in consequence of such an application shall be in Form D4 and shall be prepared in triplicate and a copy served on the respondent.

• (3) Where under Article 9(4) the court decides to treat such an application as if it were an application for an order under Article 4 the court shall state which of grounds (a) and (b) of Article 9(4) is considered applicable and a note of the decision and the grounds therefor shall be entered in the Order Book.

• (3A) Where under paragraph 18 of Schedule 16 to the Act of 2004 the court decides to treat such an application as if it were an application under Part 1 of that Schedule the court shall state which of grounds (a) or (b) of sub-paragraph (1) of that paragraph is considered applicable and a note of the decision and the grounds therefore shall be entered in the Order Book.

• (4) Where the court decides to treat the application as aforesaid and the respondent is not present or represented in court, or the respondent or his representative does not agree to the continuance of the hearing, the court shall adjourn the hearing and the clerk of petty sessions shall serve notice of the decision and the grounds therefor in Form D5 on the respondent.

Lodgment of birth certificate

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On any application for an order under Articles 4, 8 or 9 of the Order or under Parts 1, 2 or 3 of Schedule 16 to the Act of 2004 or for the variation or revocation of ... an order under Article 22 of the Order or paragraph 30 of Schedule 16 to the Act of 2004 or for the revival of such an order under Article 22B of the Order or paragraph 30 of Schedule 16 to the Act of 2004 the applicant shall lodge with the clerk of petty sessions before the hearing of the application, where the birth of the child in respect of which the order is sought has been registered, a copy of the entry relating to his birth in the Register of Births or, where he has been adopted, a copy of the entry in the Adopted Children Register, as the case may be.

Respondents to application for order under Articles 22 or 22B

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• (1) The following persons (not being the applicant) shall be made respondents on an application under Article 22 for the variation or revocation of an order that is to say:—

• (a) in the case of the variation or revocation of an order made under Article 4(1)(a) or (c), 8, or 9 the parties to the marriage in question;

• (b) in the case of the variation or revocation of an order made under Article 20—

• (i) the parties to the marriage in question; and

• (ii) where the order requires payments to be made for the benefit of a child who has his home with a person who is a parent of the child but not a party to the marriage in question that person;

• (c) in the case of the variation or revocation of an order requiring payments to be made to or for the benefit of a child who is 16 years of age or over, that child in addition to the persons who may be respondents by virtue of sub-paragraphs (a) and (b).

• (2) In the case of an application for the revival of an order under Article 22B the respondents shall be the parties to the proceedings leading to the order which it is sought to have revived.

Form of order

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• (1) An order for financial provision under Articles 4, 8 or 9 of the Order or Parts 1, 2 or 3 of Schedule 16 to the Act of 2004 shall be in Form D6.

• (2) Where the court makes a means of payment order, the clerk of petty sessions shall record on the order for financial provision to which the means of payment order relates the means of payment which the court has ordered.

• (3) Where the court orders that payments are to be made by a method of payment falling within Article 85(7) of the 1981 Order the clerk of petty sessions shall notify the person liable to make payments under the order of the number and location of the account into which the payment should be made.

Notice of court’s powers under the Children (Northern Ireland) Order 1995

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• (1) In a case where the powers of a court under the Children (Northern Ireland) Order 1995 are or may be exercisable but where no application has been made under that Order, the clerk of petty sessions shall upon the making of an application under Article 4, 8 or 9 of the Order or Parts 1, 2 or 3 of Schedule 16 to the Act of 2004 send by ordinary post a notice in Form D7 to—

• the applicant or his solicitor;

• the respondent or his solicitor; and

• any parent of the child who is not a party to the marriage or civil partnership; and whose name and address is known.

Application for personal protection orders and exclusion orders

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• (1) An application by way of complaint to a justice of the peace or clerk of petty sessions for an occupation order or a non-molestation order under the Order of 1998 shall be made in writing in Form F1.

• (2) An application in Form F1 shall be supported—

• (a) by a statement which is signed and is declared to be true; or

• (b) with the leave of the court, by oral evidence.

• (3) Any summons issued in consequence of such an application shall be prepared in triplicate in Form F2 and a copy shall be served (together with a copy of the written application referred to in paragraph (1) and any supporting statement referred to in paragraph (2)) on the respondent not less than two days prior to the date fixed for hearing.

• (4) The court may abridge the period specified in paragraph (3).

Interim personal protection orders and interim exclusion orders

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• (1) Where an application for an occupation order or a non-molestation order under the Order of 1998 is pending, the court shall consider (on the application in writing of either party or of its own motion) whether to exercise its powers to transfer the hearing of that application to another court and the court shall make an order for transfer in Form F5 if it seems necessary or expedient to do so.

• (2) Where an order for transfer is made, the clerk of petty sessions shall send a copy of the order to—

• (a) the parties; and

• (b) to the clerk of petty sessions or the chief clerk of the county court or the Master (Probate and Matrimonial) of the High Court as the case may be.

Form of personal protection order and exclusion order

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• (1) This rule applies to the hearing of applications under the Order of 1998 and the following forms shall be used in connection with such hearings:

• (a) a record of the hearing shall be made in Form F6, and

• (b) any order made on the hearing shall be issued in Form F7.

• (2) The court may direct that a further hearing be held in order to consider any representations made by a mortgagee or a landlord.

Notification of personal protection orders and exclusion orders

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• (1) An application by way of complaint to a justice of the peace or clerk of petty sessions for the extension, variation or discharge of an occupation order or non-molestation order made under the Order of 1998 shall be made in writing in Form F8.

• (2) Rules 10(3) and (4), 10C, 12 and 12A above shall apply, with the necessary modifications, to such an application.

Proceedings against person outside Northern Ireland on application for variation or revocation of an order

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• (1) The period referred to in Article 26(2) shall be the period of one month ending on the date of the hearing.

• (2) Before proceeding in a case where Article 26(2) applies the court in addition to being satisfied of the fact referred to in that provision must also be satisfied that the applicant has taken steps to give notice to the respondent of the making of the application and of the time and place appointed for the hearing by—

• (a) causing a notice in Form D13 to be delivered to the respondent; or

• (b) causing a notice in Form D13 to be sent by post addressed to the respondent at his usual or last known place of abode or business.

• (3) Where an application for the revocation or variation of an order requiring payments to be made by the applicant to the respondent is heard by virtue of Article 26(2) in the absence of the respondent the court shall not make the order unless it is satisfied that during the period of 6 months immediately preceding the making of the application the respondent was continuously outside Northern Ireland or was not in Northern Ireland on more than 30 days, and that, having regard to any communication in writing to the court purporting to be from the respondent, it is reasonable in all the circumstances so to do.

• (4) Rule 11(7) of the Magistrates' Courts Rules (Northern Ireland) 1984 shall apply for the purpose of proving the delivery of a written notice in pursuance of paragraph (2)(a) as it applies for the purpose of proving the service of a summons.

Transfer of proceedings for order under Articles 4, 8, 9 or 18

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• (1) Where an application is made for an order under Articles 4, 8 or 9 and as a consequence a summons is issued, then, on an application made by the respondent in accordance with paragraph (2) the court may, if it appears that the case could more conveniently be heard in another court of summary jurisdiction having jurisdiction to hear it by virtue of Article 32(1), determine that the proceedings shall be removed to that other court.

• (1A) Where an application is made for an order under Parts 1, 2 or 3 of Schedule 16 to the Act of 2004 and as a consequence a summons is issued, then, on an application made by the respondent in accordance with paragraph (2) the court may, if it appears that the case could more conveniently be heard in another court of summary jurisdiction having jurisdiction to hear it by virtue of Article 32(1) of the Order, as applied to those proceedings by paragraph 46 of Schedule 16 to the Act of 2004, determine that the proceedings shall be removed to that other court.

• (2) An application under paragraph (1) or (1A) may be made orally or in writing by or on behalf of the respondent and, unless the respondent applied in person, there shall be lodged with the clerk of petty sessions for the court in which the proceedings were begun a statutory declaration by the respondent stating—

• (a) the grounds upon which the application is made;

• (b) the address of the respondent to which notices may be sent;

• (c) a summary of the evidence to be adduced by the respondent in the proceedings, including the names, addresses and occupations, if known, of any witnesses to be called by the respondent;

• (d) the occupation of the respondent and, if known, of the applicant in the proceedings.

• (3) Unless the court determines that the application be refused forthwith, it shall afford to the person who applied for the order an opportunity of making representations, either orally or in writing, thereon.