The new Family Procedure Rules come into effect on 6 April. They are a welcome step in consolidating the existing disparate set of rules.

They provide a single set of rules for family proceedings whether in the High Court, county courts or magistrates’ courts. No longer should family practitioners have to refer back to the Rules of the Supreme Court or County Court Rules as has previously been the case.

The new rules are accompanied by extensive practice directions. In many areas, practitioners will need to pay more attention to the detail in the practice directions as opposed to the rules themselves.

For example, part 25, which relates to experts, largely replicates part 35 of the Civil Procedure Rules 1998. Part 35 has historically applied to ancillary relief proceedings by virtue of rule 2.61C of the Family Proceedings Rules 1991.

By contrast, the practice directions provide extensive detail and guidance regarding the practical steps to be taken in the instruction of experts in relation to both proceedings in respect of children, and those relating to financial proceedings.

The detail is extremely specific and useful – it includes information which should be provided to a proposed expert when they are first approached, the information that the expert should provide in return and detail which should be included in a letter of instruction.

Some familiar words and phrases will be consigned to history, with the most notable changes being:

  • ‘Ancillary relief’ becomes ‘financial order’;
  • There is also the broader term of ‘financial remedy’, which includes the aforementioned ‘financial order’, but also includes proceedings under schedule 1 to the Children Act 1989 and part III of the Matrimonial and Family Proceedings Act 1984;
  • Although divorce proceedings become ‘matrimonial proceedings’, we will still have decrees of divorce, nullity and judicial separation (which are collectively known as ‘matrimonial orders’);
  • Perhaps most significantly, a petition will simply become an ‘application’, the appropriate form being D8 for divorce, dissolution or judicial separation, and D8N for an annulment; and
  • Part 21 deals with the disclosure of documents by a person who is not a party to the proceedings. The term ‘inspection appointment’ is no longer used. Indeed, the term ‘production appointment’, which is still used by some practitioners, no longer applies either.

Financial remedy

As far as applications for financial remedy are concerned, aside from the issues of pre-issue mediation, the procedure is, on the whole, substantially unchanged.

A welcome change is the fact that the term ‘financial remedy’ brings together various forms of financial relief and therefore ensures that a unified procedure is required for all forms of financial remedy.

This is particularly welcome in respect of applications under schedule 1 to the Children Act 1989 where the family courts had been applying the standard ancillary relief timetable, yet delays were caused by the need for an initial directions hearing to ensure that such timetables were set down.

There are some changes of note as far as financial proceedings are concerned. In respect of costs, rule 28.3(5) continues the presumption from rule 2.71 of the Family Proceedings Rules 1991 – that each party pay their own costs in respect of financial proceeding.

However, specifically excluded from the presumption are applications for maintenance pending suit/interim periodical payments.

This should therefore mean that the losing party in such applications will be facing the risk of cost orders. Interestingly, applications to vary maintenance pending suit/interim periodical payments orders are not included within this exception.

Part 20 provides the court with extensive powers to make interim orders, although it does not apply to proceedings in a magistrates’ court.

Although part 20 is largely a consolidation of the existing powers of the court, some provisions may be of note to practitioners. In particular, the court may grant an ‘interim injunction’ by virtue of rule 20.2(1)(a).

This power may be exercised by district judges and is not narrowly defined, nor limited in scope by the rules.

Perhaps of greater significance is the inclusion of rule 20.2(1)(c)(v) which provides the court with the power to order ‘the sale of relevant property which is of a perishable nature or which for any good reason it is desirable to sell quickly’.

In those circumstances, the court can order an interim sale of property, although the rules do not provide for an interim distribution of the proceeds.

Arguably, this does not in any event reflect an extension of the court’s powers bearing in mind the Court of Appeal’s decision in Miller-Smith v Miller-Smith [2009] EWCA Civ 1297.

An interesting change in respect of statements of information filed with consent orders is set out in rule 9.26.

Where the financial information of both parties is set out in the same form, the parties must certify that they have read the contents of the other party’s disclosure.

Where separate forms are filed, the form of each party must be signed by the other party to certify that they have read its contents.

Changes to appeals

Part 30 deals with changes to appeals.

Appeals to the Court of Appeal are not affected because they were covered by the Civil Procedure Rules in any event. The new part 30 and practice direction 30A govern appeals to the High Court and county court.

Of particular note is the new requirement for leave to appeal the decision of a district judge to a circuit judge, or from a district judge of the principal registry to a High Court judge. This new rule is however subject to exceptions.

Permission to appeal is not required where the appeal is against a committal order or a secure accommodation order under section 25 of the Children Act 1989.

So far, most attention has been drawn to alternative dispute resolution (ADR), which is covered by part 3 of the rules. Not only are the parties encouraged to use ADR, but the court must consider at every stage in the proceedings whether ADR is appropriate. Part 3 applies to all family proceedings.

The real substance however lies in practice direction 3A.

Save for certain categories of application set out in annex B to the practice direction, which includes applications for enforcement in Children Act proceedings, or applications for avoidance of disposition orders within financial proceedings, there must be compliance with the pre-action protocol prior to instigating proceedings.

The pre-application protocol in annex A sets out the steps that an applicant should take to arrange mediation.

If the applicant then makes an application to the court, they should at the same time file a completed family mediation information and assessment form (form FM1) confirming the attendance at a mediation information and assessment meeting, or giving the reasons for not attending.

In certain circumstances, that form must be signed by the mediator.

Annex C sets out circumstances in which an applicant is not expected to attend a mediation information and assessment meeting.

Those include: a mediator being satisfied that the case is not suitable for mediation; there has been domestic abuse; the dispute concerns financial issues and one party is bankrupt; the whereabouts of the other party is unknown to the applicant; the application is being made without notice to the other party; the prospective application is urgent (which includes a risk to the life, liberty or physical safety of the applicant, or any delay in attending mediation could cause significant harm to a child, risk of miscarriage of justice or unreasonable hardship to the applicant); or that no mediators are available to conduct an initial meeting within 15 working days, ­subject to certain provisos.

Andrew Newbury, Pannone