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PART 32 - REGISTRATION AND ENFORCEMENT OF ORDERS
See also Practice Direction 32A
Part 32 REGISTRATION AND ENFORCEMENT OF ORDERS
I SCOPE AND INTERPRETATION OF THIS PART
Scope and interpretation
32.1(1) This Part contains rules about the registration and enforcement of maintenance orders and custody orders.
(2) In this Part, ‘the 1950 Act’ means the Maintenance Orders Act 19501.
(3) Chapter 2 of this Part relates to –
(a) the registration of a maintenance order, made in the High Court or the family court, in a court in Scotland or Northern Ireland in accordance with the 1950 Act; and
(b) the registration of a maintenance order, made in Scotland or Northern Ireland, in the High Court in accordance with the 1950 Act.
(4) Chapter 3 of this Part contains rules to be applied in the family court in relation to the registration in the family court of a maintenance order made in the High Court, in accordance with the 1958 Act.
(5) Chapter 4 of this Part relates to the registration and enforcement of custody orders in accordance with the 1986 Act.
(6) Chapter 5 of this Part relates to the ability of a court officer to take enforcement proceedings in relation to certain orders for periodical payments.
II REGISTRATION ETC. OF ORDERS UNDER THE 1950 ACT
Interpretation
32.2In this Chapter –
‘the clerk of the Court of Session’ means the deputy principal clerk in charge of the petition department of the Court of Session;
‘the clerk of the court which made the order’ means, in the case of a county court in Northern Ireland, the Chief Clerk for the appropriate court in Northern Ireland;
‘family court order’ means a maintenance order made in the family court;
‘High Court order’ means a maintenance order made in the High Court;
‘maintenance order’ means a maintenance order to which section 16 of the 1950 Act applies;
‘Northern Irish order’ means a maintenance order made by a court in Northern Ireland;
‘the register’ means the register kept for the purposes of the 1950 Act;
‘the registrar in Northern Ireland" means the chief registrar of the Queen's Bench Division (Matrimonial) of the High Court of Justice in Northern Ireland;
‘registration’ means registration under Part 2 of the 1950 Act and ‘registered’ is to be construed accordingly; and
‘Scottish order’ means a maintenance order made by a court in Scotland.
Registration of a High Court order
32.3(1) An application for the registration of a High Court order may be made by sending to a court officer at the court which made the order –
(a) a certified copy of the order; and
(b) a statement which –
(i) contains the address in the United Kingdom, and the occupation, of the person liable to make payments under the order;
(ii) contains the date on which the order was served on the person liable to make payments, or, if the order has not been served, the reason why service has not been effected;
(iii) contains the reason why it is convenient for the order to be enforced in Scotland or Northern Ireland, as the case may be;
(iv) contains the amount of any arrears due to the applicant under the order;
(v) confirms that the order is not already registered; and
(vi) is verified by a statement of truth.
(2) If it appears to the court that –
(a) the person liable to make payments under the order resides in Scotland or Northern Ireland; and
(b) it is convenient for the order to be enforced there,
the court officer will send the documents filed under paragraph (1) to the clerk of the Court of Session or to the registrar in Northern Ireland, as the case may be.
(3) On receipt of a notice of the registration of a High Court order in the Court of Session or the Court of Judicature of Northern Ireland, the court officer (who is the prescribed officer for the purposes of section 17(4) of the 1950 Act) will –
(a) enter particulars of the notice of registration in the register;
(b) note the fact of registration in the court records; and
(c) send particulars of the notice to the principal registry.
Notice of Variation etc. of a High Court order
32.4(1) This rule applies where a High Court order, which is registered in the Court of Session or the Court of Judicature of Northern Ireland, is discharged or varied.
(2) A court officer in the court where the order was discharged or varied will send a certified copy of that order to the clerk of the Court of Session or the registrar in Northern Ireland, as the case may be.
Cancellation of registration of a High Court order by the court of registration
32.5(1) This rule applies where –
(a) the registration of a High Court order registered in the Court of Session or the Court of Judicature of Northern Ireland is cancelled under section 24(1) of the 1950 Act; and
(b) notice of the cancellation is given to a court officer in the court in which the order was made (who is the prescribed officer for the purposes of section 24(3)(a) of the 1950 Act2).
(2) On receipt of a notice of cancellation of registration, the court officer will enter particulars of the notice in the register.
Cancellation of registration of a High Court order by the High Court
32.5AThe Part 19 procedure applies to an application to the High Court under section 24(2) of the 1950 Act.
Application of this Chapter to a family court order
32.6Rules 32.3 to 32.5A apply to a family court order as if –
(a) references to a High Court order were references to a family court order;
(aa) in rule 32.5A, references to the High Court were to the family court;
(b) where the order is to be registered in Scotland, references to the Court of Session and the clerk of the Court of Session were references to the sheriff court and the sheriff-clerk of the sheriff court respectively; and
(c) where the order is to be registered in Northern Ireland, references to the Court of Judicature of Northern Ireland and the registrar of Northern Ireland were references to the court of summary jurisdiction and the clerk of the court of summary jurisdiction respectively.
Variation of a family court order: section 22(1) of the 1950 Act
32.6AWhere a family court order, which is registered in a court in Scotland or Northern Ireland, is varied under section 22(1) of the 1950 Act by the court in which it is registered –
(a) the court officer for the court which made the order will be the prescribed officer to whom notice of the variation must be given under section 23(1) of the 1950 Act; and
(b) on receipt of a notice under section 23(1) of the 1950 Act, the court officer will enter particulars of the notice in the register.
Application to adduce evidence: section 22(5) of the 1950 Act
32.6B(1) The Part 18 procedure applies to an application under section 22(5) of the 1950 Act where a maintenance order was made by the family court.
(2) The family court will send a transcript or summary of any evidence taken to the clerk of the court in which the order is registered.
(3) The court officer for the court in England and Wales which made the maintenance order will be the prescribed officer to whom any transcript or summary of evidence adduced in the court in Scotland or Northern Ireland must be sent under section 22(5) of the 1950 Act.
SECTION 3
Registration etc. of Scottish and Northern Irish orders
Registration of Scottish and Northern Irish orders
On receipt of a certified copy of a Scottish order or a Northern Irish order for registration, a court officer in the principal registry (who is the prescribed officer in the High Court for the purposes of section 17(2) of the 1950 Act) or a court officer in the family court (who is the prescribed officerin the family court for the purposes of section 17(2) of the 1950 Act) will –
(a) enter particulars of the order in the register;
(b) notify the clerk of the court which made the order or the registrar in Northern Ireland, as the case may be, that the order has been registered; and
(c) file the certified copy of the order and any statutory declaration, affidavit(GL) or statement as to the amount of any arrears due under the order.
(Section 17(3) of the 1950 Act makes provision as to the court in England and Wales to which a Northern Irish order or a Scottish order should be sent, which depends on which court originally made the order.)
Application to adduce evidence: sections 21(2) and 22(5) of the 1950 Act
(1) The Part 18 procedure applies to the applications under these provisions of the 1950 Act –
(a) an application to the High Court to adduce evidence under section 21(2) by a person liable to make payments under a Scottish order registered in the High Court;
(b) an application to the family court to adduce evidence under section 21(2) by a person liable to make payments under a Scottish order registered in the High Court under the 1950 Act and registered in the family court under Part 1 of the 1958 Act; and
(c) an application to the family court to adduce evidence under section 22(5) by a person entitled to payments or a person liable to make payments under a Scottish order or a Northern Irish order registered in the family court under Part 1 of the 1950 Act.
(2) The court officer for the family court (being the court in which the order is registered) will be the prescribed officer under section 22(5) of the 1950 Act to whom any transcript or summary of evidence adduced in the court in Scotland or Northern Ireland by which the order was made must be sent.
Notice of variation etc. of Scottish and Northern Irish orders
(1) This rule applies where –
(a) a Scottish order or a Northern Irish order, which is registered in the High Court or the family court, is discharged or varied by the court in Scotland or Northern Ireland; and
(b) notice of the discharge or variation is given to the court officer inthe High Court or in the family court, as the case may be (who is the prescribed officer for the purposes of section 23(1)(a) of the 1950 Act3).
(2) On receipt of a notice of discharge or variation, the court officer will enter particulars of the notice in the register.
Variation of Scottish and Northern Irish orders by the family court
(1) The Part 18 procedure applies to an application to the family court under section 22(1) of the 1950 Act to vary a Scottish order or a Northern Irish order which is registered in the family court.
(2) Where a Scottish order or a Northern Irish order is varied by the family court on an application under section 22(1) of the 1950 Act, the court officer will give notice of the variation to the clerk of the court in Scotland or Northern Ireland which made the order by sending a certified copy of the order of variation.
Cancellation of registration of Scottish and Northern Irish orders
(1) The Part 18 procedure applies to an application under section 24(1) of the 1950 Act for the cancellation of the registration of a Scottish order or a Northern Irish order in the High Court or the family court.
(2) The application must be made without notice to the person liable to make payments under the order.
(3) If the registration of the order is cancelled, the court officer will –
(a) note the cancellation in the register; and
(b) send written notice of the cancellation to –
(i) the clerk of the court which made the order or the registrar in Northern Ireland, as the case may be; and
(ii) the court officer of the family court if the order has been registered in the family court in accordance with section 2(5) of the 1958 Act.
(4) Where a maintenance order is registered under the 1950 Act in the family court, the court officer for the family court is the prescribed officer for the purposes of section 24(2) of the 1950 Act, and in paragraphs (5) and (6) references to the court officer are to the court officer of the family court.
(5) If a notice under section 24(2) of the 1950 Act is received, the court officer will –
(a) cancel the registration of the order; and
(b) send written notice of the cancellation to the clerk of the court which made the order.
(6) Where a maintenance order is registered in the family court under Part 1 of the 1958 Act and the court officer receives a notice of cancellation under section 24(3) of the 1950 Act from the appropriate officer of the High Court, the court officer will –
(a) enter the details of the notice in the register;
(b) cancel the registration under Part 1 of the 1958 Act; and
(c) give notice of the cancellation to the appropriate officer of the court which made the order, being –
(i) the Deputy Principal Clerk of Session, in the case of the Court of Session; or
(ii) the Chief Registrar of the Queen’s Bench Division (Matrimonial), in the case of the High Court of Justice in Northern Ireland.
Payments under a maintenance order registered in the family court
32.10A(1) This rule applies where section 22(1A) of the 1950 Act applies and the family court orders that payments under a maintenance order registered in the family court are to be made by a particular means.
(2) The court officer will record on a copy of the order the means of payment that the court has ordered.
(3) The court officer will notify, in writing, the person liable to make payments under the order how the payments are to be made.
(4) Where under section 1(4A) of the Maintenance Enforcement Act 1991 the family court orders payment to the court by a method of payment specified in section 1(5) of that Act, the court officer will notify the person liable to make payments under the order of sufficient details of the account into which the payments should be made to enable payments to be made into that account.
(5) The Part 18 procedure applies to an application under section 1(7) of the Maintenance Enforcement Act 1991 (application from an interested party to revoke, suspend, revive or vary a means of payment order).
(6) Where the court makes an order under section 1(7) of the Maintenance Enforcement Act 1991 or dismisses an application for such an order, the court officer will, as far as practicable, notify in writing all interested parties of the effect of the order and will take the steps set out in paragraphs (2), (3) and (4), as appropriate.
(7) In this rule, ‘interested party’ has the meaning given in section 1(10) of the Maintenance Enforcement Act 1991.
Enforcement
32.11(1) Subject to paragraph (2), Part 33 applies to an application for or with respect to the enforcement of a Scottish order or a Northern Irish order registered in the High Court or the family court.
(2) The application may be made without notice to the person liable to make payments under the order.
Inspection of register and copies of order
32.12Any person –
(a) who is entitled to receive, or liable to make, payments under a Scottish order or a Northern Irish order registered in the High Court or the family court under the 1950 Act; or
(b) with the permission of the court,
may –
(i) inspect the register; or
(ii) request a copy of any order registered in the High Court or the family court under Part 2 of the 1950 Act and any statutory declaration, affidavit(GL) or statement filed with the order.
Notices and certificates: section 19(4), 20(1) and 24(5) and (5A) of the 1950 Act
32.12A(1) Practice Direction 32A contains the form of –
(a) a notice under section 19(4) of the 1950 Act that payments under a maintenance order made by a sheriff court in Scotland or a court of summary jurisdiction in Northern Ireland have become payable through or to any officer or person;
(b) a notice under section 19(4) of the 1950 Act that the payments under a maintenance order made by the family court have, on its registration under Part 2 of the 1950 Act in a court in Scotland or Northern Ireland, ceased to be payable to or through the court or any person;
(c) a certificate lodged under section 20(1) of the 1950 Act as to the amount of any arrears due under a maintenance order made by the family court; and
(d) a notice under section 24(5) or (5A) of the 1950 Act of the cancellation of the registration under Part 2 of the 1950 Act of a maintenance order in the family court.
(2) The court officer will send a notice referred to in paragraph (1)(a), (b) or (d) to the person liable to make the payments under the order at that person’s last known address.
III REGISTRATION OF MAINTENANCE ORDERS UNDER THE 1958 ACT
Interpretation
32.13In this Chapter ‘the register’ means the register kept for the purposes of the 1958 Act.
Registration of orders - prescribed period
32.14The prescribed period for the purpose of section 2(2) of the 1958 Act is 14 days.
(Section 2(2) sets out the period during which an order, which is to be registered in a magistrates' court, may not be enforced)
Application for registration of a maintenance order in the family court – procedure in the High Court
32.15(1) An application under section 2(1) of the 1958 Act may be made by sending to the court officer at the court which made the order –
(a) a certified copy of the maintenance order; and
(b) two copies of the application.
(2) When, on the grant of an application, the court officer sends the certified copy of the maintenance order to the family court in accordance with section 2(2), the court officer must –
(a) note on the order that the application for registration has been granted; and
(b) send to the family court a copy of the application for registration of the order.
(3) On receiving notice that the family court has registered the order, the court officer of the High Court must enter particulars of the registration in the court records.
Application for registration of a maintenance order in the family court – procedure in the family court
32.15A(1) This rule applies where the court officer for the family court receives from the court officer of the High Court a certified copy of a High Court order, in accordance with section 2(2)(b) of the 1958 Act.
Registration in the family court of an order registered in the High Court – procedure in the High Court
32.16Registration in the family court of an order registered in the High Court – procedure in the family court
32.16A(1) This rule applies where –
(a) a maintenance order is registered in the High Court in accordance with section 17(4) of the 1950 Act; and
(b) the court officer of the family court, in accordance with section 2(2)(b) of the 1958 Act, receives from the appropriate officer of the original court in Scotland or Northern Ireland a certified copy of an order made by the court in Scotland or Northern Ireland.
(2) The court officer of the family court will –
(a) register the order in the family court by entering particulars in the register; and
(b) send written notice to the court officer of the High Court and to the appropriate officer of the original court in Scotland or in Northern Ireland that the order has been registered.
Omitted
Omitted
Variation or discharge of an order registered in the family court – procedure in the High Court
(1) This rule applies where a maintenance order is registered in the family court under Part 1 of the 1958 Act.
(2) If the court which made the order makes an order varying or discharging that order the court officer of the High Court must send a certified copy of the order of variation or discharge to the family court.
(3) If the court officer of the High Court receives from the family court a certified copy of an order varying the maintenance order the court officer must –
(a) file the copy of the order; and
(b) enter the particulars of the variation in the place where the details required by rule 32.15(3) were entered.
Variation, remission, discharge or cancellation of registration of an order registeredin the family court – procedure in the family court
(1) Where under section 4(2) of the 1958 Act a High Court order registered in the family court is varied by the family court, the court officer for the family court will give notice of the variation to the High Court.
(2) Where under section 4(4) of the 1958 Act an application for the variation of a High Court order registered in the family court is remitted to the High Court by the family court, the court officer for the family court will give notice of its having been remitted to the High Court.
(3) Where under section 5(4) of the 1958 Act the registration of a High Court order in the family court is cancelled by the family court, the court officer for the family court will give notice of cancellation to the High Court, stating (if applicable) that the cancellation is a result of a notice given under section 5(1) of the 1958 Act.
(4) Where under section 5(4) of the 1958 Act the registration in the family court of an order made in Scotland or Northern Ireland is cancelled by the family court, the court officer for the family court will give notice of the cancellation to –
(a) the appropriate officer of the court which made the order; and
(b) where the order is registered under Part 2 of the 1950 Act, to the appropriate officer of the High Court.
(5) Where under section 5(4) of the 1958 Act the registration in the family court of an order under Part 2 of the 1950 Act is cancelled by the family court, the court officer for the family court will give notice of the cancellation to the appropriate officer of the original court.
(6) Where under section 5 of the 1958 Act the cancellation of the registration of a High Court order means that any order which requires payment to be made to the family court is to cease to have effect, the court officer will give notice to the defendant in the form set out in Practice Direction 32A (Form 7).
Omitted
Omitted
Cancellation of registration – orders registered in the family court
(1) Where the court gives notice under section 5(2) of the 1958 Act, the court officer must endorse the notice on the certified copy of the order of variation or discharge sent to the family court in accordance with rule 32.19(2).
(2) Where notice is received from a magistrates' court that registration of an order made by the High Court under Part 1 of the 1958 Act has been cancelled, the court officer must enter particulars of the cancellation in the place where the details required by rule 32.15(3) were entered.
Notices: payments made through the family court
(1) Paragraph (2) applies where a notice is given under section 2(6ZC) of the 1958 Act that payments under an order registered in the family court are payable to the family court.
(2) The notice will be in the form set out in Practice Direction 32A (Form 5) and will be given by the court officer of the family court.
(3) Paragraph (4) applies where a notice is given under section 2(6ZC) of the 1958 Act that payments under an order registered in the family court have ceased to be payable to the family court.
(4) The notice will be in the form set out in Practice Direction 32A (Form 6) and will be given by the court officer of the family court.
Method of payment
(1) This rule applies where the family court exercises its duties or powers under section 4A(2) of the 1958 Act to make, revive or vary any means of payment order within the meaning of section 1(7) of the Maintenance Enforcement Act 1991.
(2) Where the court orders that payments under a registered order are to be made by a particular means –
(a) the court will record on a copy of the order the means of payment which the court has ordered; and
(b) the court officer will notify, in writing, the person liable to make payments under the order how the payments are to be made.
(3) Paragraph (4) applies where the court orders that payments be made –
(a) by the debtor to the creditor; or
(b) by the debtor to the court;
by a method falling within section 1(5) of the Maintenance Enforcement Act1991.
(4) The court officer will notify the person liable to make payments under the order of sufficient details of the account into which payments should be made to enable payments to be made into that account.
Variation of method of payment
(1) The Part 18 procedure applies to an application under section 1(3)(a) of the Maintenance Enforcement Act 1991 received from an interested party for the method of payment to be varied under section 4A of the 1958 Act.
(2) The court will notify the interested party who made the application and, where practicable, any other interested party, of the result of the application.
(3) The court will record any variation on a copy of the order.
Notices received from another court or from a person entitled to payments
(1) This rule applies where any notice is received –
(a) of the discharge or variation by the High Court of a High Court order registered in the family court;
(b) of the discharge or variation by a court in Scotland or Northern Ireland of an order made by such a court and registered in the family court; or
(c) under section 5(1) or (2) of the 1958 Act.
(2) The court officer for the family court will enter details of any such notice in the register.
(3) In the case of a notice under section 5(1) or (2) of the 1958 Act, the court officer for the family court will ensure that the person in possession of any warrant of commitment, issued but not executed, for the enforcement of the order is informed of the giving of that notice.
IV REGISTRATION AND ENFORCEMENT OF CUSTODY ORDERS UNDER THE 1986 ACT
Interpretation
32.23In this Chapter –
"appropriate court" means, in relation to –
(a) Scotland, the Court of Session;
(b) Northern Ireland, the High Court in Northern Ireland; and
(c) a specified dependent territory, the corresponding court in that territory;
‘appropriate officer’ means, in relation to –
(a) the Court of Session, the Deputy Principal Clerk of Session;
(b) the High Court in Northern Ireland, the Master (Care and Protection) of that court; and
(c) the appropriate court in a specified dependent territory, the corresponding officer of that court;
‘Part 1 order’ means an order under Part 1 of the 1986 Act;
‘the register’ means the register kept for the purposes of Part 1 of the 1986 Act; and
‘specified dependent territory’ means a dependent territory specified in column 1 of Schedule 1 to the Family Law Act 1986 (Specified Dependent Territories) Order 19914.
Prescribed officer and functions of the court
32.24(1) The prescribed officer for the purposes of sections 27(4) and 28(1) of the 1986 Act5 is the family proceedings department manager of the principal registry.
(2) The function of the court under sections 27(3) and 28(1) of the 1986 Act6 shall be performed by a court officer.
Application for the registration of an order made by the High Court or or the family court
32.25(1) An application under section 27 of the 1986 Act for the registration of an order made in the High Court or the family court may be made by sending to a court officer at the court which made the order –
(a) a certified copy of the order;
(b) a copy of any order which has varied the terms of the original order;
(c) a statement which –
(i) contains the name and address of the applicant and the applicant's interest under the order;
(ii) contains –
(aa) the name and date of birth of the child in respect of whom the order was made;
(bb) the whereabouts or suspected whereabouts of the child; and
(cc) the name of any person with whom the child is alleged to be;
(iii) contains the name and address of any other person who has an interest under the order and states whether the order has been served on that person;
(iv) states in which of the jurisdictions of Scotland, Northern Ireland or a specified dependent territory the order is to be registered;
(v) states that to the best of the applicant's information and belief, the order is in force;
(vi) states whether, and if so where, the order is already registered;
(vii) gives details of any order known to the applicant which affects the child and is in force in the jurisdiction in which the order is to be registered;
(viii) annexes any document relevant to the application; and
(ix) is verified by a statement of truth; and
(d) a copy of the statement referred to in paragraph (c).
(2) On receipt of the documents referred to in paragraph (1), the court officer will, subject to paragraph (4) –
(a) keep the original statement and send the other documents to the appropriate officer;
(b) record in the court records the fact that the documents have been sent to the appropriate officer; and
(c) file a copy of the documents.
(3) On receipt of a notice that the document has been registered in the appropriate court the court officer will record that fact in the court records.
(4) The court officer will not send the documents to the appropriate officer if it appears to the court officer that –
(a) the order is no longer in force; or
(b) the child has reached the age of 16.
(5) Where paragraph (4) applies –
(a) the court officer must, within 14 days of the decision, notify the applicant of the decision of the court officer in paragraph (4) and the reasons for it; and
(b) the applicant may apply to the court, in private for an order that the documents be sent to the appropriate court.
Registration of orders made in Scotland, Northern Ireland or a specified dependent territory
32.26(1) This rule applies where the prescribed officer receives, for registration, a certified copy of an order made in Scotland, Northern Ireland or a specified dependent territory.
(2) The prescribed officer will –
(a) enter in the register –
(i) the name and address of the applicant and the applicant's interest under the order;
(ii) the name and date of birth of the child and the date the child will attain the age of 16;
(iii) the whereabouts or suspected whereabouts of the child; and
(iv) the terms of the order, its date and the court which made it;
(b) file the certified copy and accompanying documents; and
Revocation and variation of an order made in the High Court or the family court
32.27(1) Where a Part 1 order, registered in an appropriate court, is varied or revoked, the court officer of the court making the order of variation or revocation will –
(a) send a certified copy of the order of variation or revocation to –
(i) the appropriate officer; and
(ii) if a different court, the court which made the Part 1 order;
(b) record in the court records the fact that a copy of the order has been sent; and
(c) file a copy of the order.
Registration of varied, revoked or recalled orders made in Scotland, Northern Ireland or a specified dependent territory
32.28(1) This rule applies where the prescribed officer receives a certified copy of an order made in Scotland, Northern Ireland or a specified dependent territory which varies, revokes or recalls a registered Part 1 order.
(2) The prescribed officer shall enter particulars of the variation, revocation or recall in the register and give notice of the entry to –
(a) the court which sent the certified copy;
(b) if different, the court which made the Part 1 order;
(c) the applicant for registration; and
(d) if different, the applicant for the variation, revocation of recall of the order.
(3) An application under section 28(2) of the 1986 Act must be made in accordance with the Part 19 procedure.
(4) The applicant for the Part 1 order, if not the applicant under section 28(2) of the 1986 Act, must be made a defendant to the application.
(5) Where the court cancels a registration under section 28(2) of the 1986 Act, the court officer will amend the register and give notice of the amendment to the court which made the Part 1 order.
Interim directions
32.29The following persons will be made parties to an application for interim directions under section 29 of the 1986 Act7 –
(a) the parties to the proceedings for enforcement; and
(b) if not a party to those proceedings, the applicant for the Part 1 order.
Staying and dismissal of enforcement proceedings
32.30(1) The following persons will be made parties to an application under section 30(1) or 31(1) of the 1986 Act –
(a) the parties to the proceedings for enforcement which are sought to be stayed(GL); and
(b) if not a party to those proceedings, the applicant for the Part 1 order.
(2) Where the court makes an order under section 30(2) or (3) or section 31(3) of the 1986 Act, the court officer will amend the register and give notice of the amendment to –
(a) the court which made the Part 1 order; and
(b) the applicants for –
(i) registration;
(ii) enforcement; and
(iii) stay(GL) or dismissal of the enforcement proceedings.
Particulars of other proceedings
32.31A party to proceedings for or relating to a Part 1 order who knows of other proceedings which relate to the child concerned (including proceedings out of the jurisdiction and concluded proceedings) must file a witness statement which –
(a) states in which jurisdiction and court the other proceedings were begun;
(b) states the nature and current state of the proceedings and the relief claimed or granted;
(c) sets out the names of the parties to the proceedings and their relationship to the child;
(d) if applicable and if known, states the reasons why relief claimed in the proceedings for or relating to the Part 1 order was not claimed in the other proceedings; and
(e) is verified by a statement of truth.
Inspection of register
32.32The following persons may inspect any entry in the register relating to a Part 1 order and may request copies of the order any document relating to it –
(a) the applicant for registration of the Part 1 order;
(b) a person who, to the satisfaction of a district judge, has an interest under the Part 1 order; and
(c) a person who obtains the permission of a district judge.
V ABILITY OF A COURT OFFICER TO TAKE ENFORCEMENT PROCEEDINGS IN RELATION TO CERTAIN ORDERS FOR PERIODICAL PAYMENTS
Court officers and enforcement proceedings
32.33(1) In this rule –
‘the 1972 Act’ means the Maintenance Orders (Reciprocal Enforcement) Act 1972;
‘relevant order’ means –
(a) any order made by the family court for periodical payments, other than an order made by virtue of Part 2 of the 1972 Act;
(b) any order for periodical payments made by the High Court (including an order deemed to be made by the High Court by virtue of section 1(2) of the 1958 Act) and registered under Part 1 of the 1958 Act in the family court; and
(c) an order made by a court in Scotland or in Northern Ireland which is registered in the family court under Part 2 of the 1950 Act; and
‘the payee’ means the person for whose benefit payments under a relevant order are required to be made.
(2) Where –
(a) payments under a relevant order are required to be made periodically to the family court; and
(b) any sums payable under the order are in arrears,
a court officer will, if the payee so requests in writing, and unless it appears to the court officer that it is unreasonable in the circumstances to do so, proceed in the officer’s own name for the recovery of those sums.
(3) Where payments under a relevant order are required to be made periodically to the court, the payee may, at any time during the period in which the payments are required to be so made, give authority in writing to a court officer for the officer to proceed as mentioned in paragraph (4).
(4) Where authority is given under paragraph (3) to a court officer, that officer will, unless it appears unreasonable in the circumstances to do so, proceed in the officer’s own name for the recovery of any sums payable to the court under the order in question which, on or after the date of the giving of the authority, fall into arrears.
(5) In any case where –
(a) authority under paragraph (3) has been given to a court officer; and
(b) the payee gives notice in writing to that court officer cancelling the authority,
the authority will cease to have effect and so the court officer will not continue anyproceedings already commenced by virtue of the authority.
(6) The payee shall have the same liability for all of the costs properly incurred in, or in relation to, proceedings taken under paragraph (2) at the payee’s request, or under paragraph (3) by virtue of the payee’s authority, including any court fees and any costs incurred as a result of any proceedings commenced not being continued, as if the proceedings had been commenced by the payee.
(7) Nothing in paragraph (2) or (4) shall affect any right of a payee to proceed in his or her own name for the recovery of sums payable under an order of any court.
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Part 37 APPLICATIONS AND PROCEEDINGS IN RELATION TO CONTEMPT OF COURT
37.1
(1) This Part sets out the procedure to be followed in proceedings for contempt of court (“contempt proceedings”).
(2) This Part does not alter the scope and extent of the jurisdiction of courts determining contempt proceedings, whether inherent, statutory or at common law.
(3) This Part has effect subject to and to the extent that it is consistent with the substantive law of contempt of court.
Interpretation
37.2
In this Part—
“claimant” means a person making a contempt application;
“contempt application” means an application to the court for an order determining contempt proceedings;
“defendant” means the person against whom the application is made;
“order of committal” means the imposition of a sentence of imprisonment (whether immediate or suspended) for contempt of court;
“penal notice” means a prominent notice on the front of an order warning that if the person against whom the order is made (and, in the case of a corporate body, a director or officer of that body) disobeys the court’s order, the person (or director or officer) may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.
How to make a contempt application
37.3
(1) A contempt application made in existing High Court or family court proceedings is made by an application under Part 18 in those proceedings, whether or not the application is made against a party to those proceedings.
(2) If the application is made in the High Court, it shall be determined by a High Court judge of the Division in which the case is proceeding. If it is made in the family court, it shall be determined by a judge of the family court.
(The Family Court (Composition and Distribution of Business) Rules 2014( ) make provision for which level of judge may determine a contempt application.)
(3) A contempt application in relation to alleged interference with the due administration of justice, otherwise than in existing High Court or family court proceedings, is made by an application to the High Court under Part 19.
(4) Where an application under Part 19 is made under paragraph (3), the rules in Part 19 apply except as modified by this Part and the defendant is not required to acknowledge service of the application.
(5) Permission to make a contempt application is required where the application is made in relation to—
(a)interference with the due administration of justice, except in relation to existing High Court or family court proceedings;
(b)an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement.
(6) If permission to make the application is needed, the application for permission shall be included in the contempt application, which will proceed to a full hearing only if permission is granted.
(7) If permission is needed and the application relates to High Court proceedings, the question of permission shall be determined by a single judge of the High Court. If permission is granted the contempt application shall be determined by a single judge or Divisional Court of that Division.
Requirements of a contempt application
37.4
(1) Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.
(2) A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—
(a)the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);
(b)the date and terms of any order allegedly breached or disobeyed;
(c)confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;
(d)if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;
(e)confirmation that any order allegedly breached or disobeyed included a penal notice;
(f)the date and terms of any undertaking allegedly breached;
(g)confirmation of the claimant’s belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;
(h)a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;
(i)that the defendant has the right to be legally represented in the contempt proceedings;
(j)that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;
(k)that the defendant may be entitled to the services of an interpreter;
(l)that the defendant is entitled to a reasonable time to prepare for the hearing;
(m)that the defendant is entitled but not obliged to give written and oral evidence in their defence;
(n)that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;
(o)that the court may proceed in the defendant’s absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;
(p)that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;
(q)that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;
(r)that the court’s findings will be provided in writing as soon as practicable after the hearing; and
(s)that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public.
Service of a contempt application
37.5
(1) Unless the court directs otherwise in accordance with Part 6 and except as provided in paragraph (2), a contempt application and evidence in support must be served on the defendant personally.
(2) Where a legal representative for the defendant is on the record in the proceedings in which, or in connection with which, an alleged contempt is committed—
(a)the contempt application and evidence in support may be served on the representative for the defendant unless the representative objects in writing within seven days of receipt of the application and evidence in support;
(b)if the representative does not object in writing, they must at once provide to the defendant a copy of the contempt application and the evidence supporting it and take all reasonable steps to ensure the defendant understands them;
(c)if the representative objects in writing, the issue of service shall be referred to a judge of the court dealing with the contempt application; and the judge shall consider written representations from the parties and determine the issue on the papers, without (unless the judge directs otherwise) an oral hearing.
Cases where no application is made
37.6
(1) If the court considers that a contempt of court (including a contempt in the face of the court) may have been committed, the court of its own initiative shall consider whether to proceed against the defendant in contempt proceedings.
(2) Where the court does so, any other party in the proceedings may be required by the court to give such assistance to the court as is proportionate and reasonable, having regard to the resources available to that party.
(3) If the court proceeds of its own initiative, it shall issue a summons to the defendant which includes the matters set out in rule 37.4(2)(a)-(s) (in so far as applicable) and requires the defendant to attend court for directions to be given.
(4) A summons issued under this rule shall be served on the defendant personally and on any other party, unless the court directs otherwise. If rule 37.5(2) applies, the procedure there set out shall be followed unless the court directs otherwise.
Directions for hearing of contempt proceedings
37.7
(1) The court shall give such directions as it thinks fit for the hearing and determination of contempt proceedings, including directions for the attendance of witnesses and oral evidence, as it considers appropriate.
(2) The court may issue a bench warrant to secure the attendance of the defendant at a directions hearing or at the substantive hearing.
(3) The court may not give any direction compelling the defendant to give evidence either orally or in writing.
Hearings and judgments in contempt proceedings
37.8
(1) All hearings of contempt proceedings shall, irrespective of the parties’ consent, be listed and heard in public unless the court otherwise directs, applying the provisions of paragraph (4).
(2) In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected.
(3) The court shall .take reasonable steps to ensure that all hearings are of an open and public character, save when a hearing is held in private
(4) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice—
(a)publicity would defeat the object of the hearing;
(b)it involves matters relating to national security;
(c)it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d)a private hearing is necessary to protect the interests of any child or protected party;
(e)it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f)it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or
(g)the court for any other reason considers this to be necessary to secure the proper administration of justice.
(5) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.
(6) Unless and to the extent that the court otherwise directs, where the court acts under paragraph (4) or (5), a copy of the court’s order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.
(7) Advocates and the judge shall appear robed in all hearings of contempt proceedings, whether or not the court sits in public.
(8) Before deciding to sit in private for all or part of the hearing, the court shall notify the national print and broadcast media, via the Press Association.
(9) The court shall consider any submissions from the parties or media organisations before deciding whether and if so to what extent the hearing should be in private.
(10) If the court decides to sit in private it shall, before doing so, sit in public to give a reasoned public judgment setting out why it is doing so.
(11) At the conclusion of the hearing, whether or not held in private, the court shall sit in public to give a reasoned public judgment stating its findings and any punishment.
(12) The court shall inform the defendant of the right to appeal without permission, the time limit for appealing and the court before which any appeal must be brought.
(13) The court shall be responsible for ensuring that judgments in contempt proceedings are transcribed and published on the website of the judiciary of England and Wales.
Powers of the court in contempt proceedings
37.9
(1) If the court finds the defendant in contempt of court, the court may impose a period of imprisonment (an order of committal), a fine, confiscation of assets or other punishment permitted under the law.
(2) Execution of an order of committal requires issue of a warrant of committal. An order of committal and a warrant of committal have immediate effect unless and to the extent that the court decides to suspend execution of the order or warrant.
(3) An order or warrant of committal must be personally served on the defendant unless the court directs otherwise.
(4) To the extent that the substantive law permits, a court may attach a power of arrest to a committal order.
(5) An order or warrant of committal may not be enforced more than two years after the date it was made unless the court directs otherwise.
Applications to discharge committal orders
37.10
(1) A defendant against whom a committal order has been made may apply to discharge it.
(2) Any such application shall be made by an application notice under Part 18 in the contempt proceedings.
(3) The court hearing such an application shall consider all the circumstances and make such order under the law as it thinks fit.
PRACTICE DIRECTION 37A – APPLICATIONS AND PROCEEDINGS IN RELATION TO CONTEMPT OF COURT
PRACTICE DIRECTION 37A – APPLICATIONS AND PROCEEDINGS IN RELATION TO CONTEMPT OF COURT
Directions for hearings of contempt proceedings
1. Evidence adduced by defendant. Rule 37.7(3) provides that the court may not give any direction compelling the defendant to give evidence either orally or in writing. The court may, however, direct that, if the defendant wishes to adduce evidence in response to the contempt application, the defendant file and serve witness statements of the witnesses (including himself or herself) on which reliance is intended. Such statements may not be used against the defendant in the contempt application unless and until the defendant deploys them in support of the defendant’s case against the contempt application.
2. Striking out and procedural defects.(1) On application by the defendant or on its own initiative, the court may strike out a
contempt application if it appears to the court—
(a) that the application and the evidence served in support of it disclose no reasonable ground for alleging that the defendant is guilty of a contempt of court;
(b) that the application is an abuse of the court's process or, if made in existing proceedings, is otherwise likely to obstruct the just disposal of those proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.
(2) The court may waive any procedural defect in the commencement or conduct of a contempt application if satisfied that no injustice has been caused to the defendant by the defect.
Hearings and judgments in contempt proceedings
3. Informing the defendant of right to appeal, etc. Paragraph (12) of rule 37.8 does not require the court to inform a defendant who has been acquitted of contempt of the right to appeal and the other matters listed in that paragraph.
4. Responsibility of court for publication of judgments. While paragraph (13) of rule 37.8 makes the court responsible for the publication of transcripts of judgments in contempt proceedings, it does not require the court to publish a transcript of every judgment, but only in a case where the court makes an order for committal.
22A Evidence in general
1.1
Rule 22.2(1) sets out the general rule as to how evidence is to be given and facts are to be proved. This is that, at the final hearing, witnesses will normally give oral evidence and, at any hearing other than the final hearing, by evidence in writing (which under rule 22.7(1) will usually be by witness statement).
1.2
Rule 22.2(2) excludes the general rule –
(a) from proceedings under Part 12 (Children) for secure accommodation orders, interim care orders or interim supervision orders; or
(b) where an enactment, any rule in the FPR, a practice direction or a court order provides to the contrary.
1.3
Application forms, application notices and answers except an application for a matrimonial order or a civil partnership order or an answer to such an application may also be used as evidence provided that their contents have been verified by a statement of truth (see Part 17 for information about statements of truth).
(For information regarding evidence by deposition see Part 24 and the practice direction which supplements it.)
1.4
Affidavits must be used as evidence –
(a) where sworn evidence is required by an enactment, rule, order or practice direction; and
(b) in any application for an order against anyone for alleged contempt of court.
1.5
If a party believes that sworn evidence is required by a court in another jurisdiction for any purpose connected with the proceedings, he may apply to the court for a direction that evidence shall be given only by affidavit on any applications to be heard before the final hearing.
1.6
The court may give a direction under rule 22.12 that evidence shall be given by affidavit instead of or in addition to a witness statement –
(a) on its own initiative; or
(b) after any party has applied to the court for such a direction.
1.7
An affidavit, where referred to in the FPR or a practice direction, also means an affirmation unless the context requires otherwise.
Affidavits and Witness Statements
Meaning of ‘deponent’ and ‘witness’
For the purposes of the FPR –
a ‘deponent’ is a person who gives evidence by affidavit, affirmation or deposition; and
a ‘witness’ is a person who gives evidence by witness statement.
References in the following paragraphs to "the maker of", or "making", an affidavit, affirmation, deposition or witness statement are to be construed accordingly.
Heading and format
The affidavit/statement should be headed with the title of the proceedings where the proceedings are between several parties with the same status it is sufficient to identify the parties, subject to paragraph 4.2, as follows –
Subject to paragraph 4.2, at the top right-hand corner of the first page (and on the backsheet) there should be clearly written –
(a) the party on whose behalf it is made;
(b) the initials and surname of the maker;
(c) the number of the affidavit/statement in relation to its maker;
(d) the identifying initials and number of each exhibit referred to; and
(e) the date made.
The affidavit/statement should –
(a) be produced on durable quality A4 paper with a 3.5 cm margin;
(b) be fully legible and should normally be typed on one side of the paper only;
(c) where possible, should be bound securely in a manner which would not hamper filing or, where secure binding is not possible, each page should be endorsed with the case number and should bear the following initials –
(i) in the case of an affidavit, of the maker and of the person before whom it is sworn; or
(ii) in the case of a witness statement, of the maker and, where the maker is unable to read or sign the statement, of the authorised person (see paragraphs 7.3 and 7.4 below);
(d) have the pages numbered consecutively as a separate document (or as one of several documents contained in a file);
(e) be divided into numbered paragraphs;
(f) have all numbers, including dates, expressed in figures; and
(g) give the reference to any document or documents mentioned either in the margin or in bold text in the body of the affidavit/statement.
Body
Subject to paragraph 4.2 and rules 14.2 and 29.1, the affidavit/statement must, if practicable, be in the maker's own words, it should be expressed in the first person, and the maker should –
(a) commence –
(i) in an affidavit, ‘I (full name) of (residential address) state on oath .. ’;
(ii) in a statement, by giving his or her full name and residential address;
(b) if giving evidence in a professional, business or other occupational capacity, give the address at which he or she works in (a) above, the position held and the name of the firm or employer;
(c) give his or her occupation or (if none) description; and
(d) if it be the case that the maker is a party to the proceedings or is employed by a party to the proceedings, state that fact.
If, in proceedings to which Part 14 (Adoption, placement and related proceedings) applies, a serial number has been assigned under rule 14.2, the affidavit/statement must be framed so that it does not disclose the identity of the applicant.
(Rule 29.1 provides that, unless the court directs otherwise, a party to family proceedings is not required to reveal the address of his or her private residence or other contact details.)
An affidavit/statement must indicate –
(a) which of the statements in it are made from the maker's own knowledge and which are matters of information and belief; and
(b) the source for any matters of information and belief.
It is usually convenient to follow the chronological sequence of events or matters dealt with. Each paragraph should as far as possible be confined to a distinct portion of the subject.
The maker should, when referring to an exhibit or exhibits, state ‘there is now shown to me marked’ . ‘the (description of exhibit)’.
Alterations to affidavits and witness statements
Any alteration to an affidavit must be initialled by both the maker and the person before whom the affidavit is sworn.
Any alteration to a witness statement must be initialled by the maker or by the authorised person where appropriate (see paragraphs 7.3 and 7.4 below).
An affidavit/statement which contains an alteration that has not been initialled in accordance with paragraphs 5.1 and 5.2 may be filed or used in evidence only with the permission of the court.
Swearing an affidavit or verifying a witness statement
An affidavit is the testimony of the person who swears it. A witness statement is the equivalent of the oral evidence which the maker would, if called, give in evidence.
The jurat of an affidavit is a statement set out at the end of the document which authenticates the affidavit. It must –
(a) be signed by all deponents;
(b) be completed and signed by the person before whom the affidavit was sworn whose name and qualification must be printed beneath his signature;
(c) contain the full address of the person before whom the affidavit was sworn; and
(d) follow immediately on from the text and not be put on a separate page.
An affidavit must be sworn before a person independent of the parties or their representatives. Only the following may administer oaths and take affidavits –
(a) a Commissioner for Oaths (Commissioners for Oaths Acts 1889 and 1891);
(b) other persons specified by statute (sections 12 and 18 of, and Schedules 2 and 4 to, the Legal Services Act 2007);
(c) certain officials of the Senior Courts (section 2 of the Commissioners for Oaths Act 1889);
A witness statement must include a statement of truth by the intended maker as follows:
“I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
‘I believe that the facts stated in this witness statement are true.’
(Attention is drawn to rule 17.6 which sets out the consequences of verifying a witness statement containing a false statement without an honest belief in its truth.)
(For information regarding statements of truth, see Part 17 (Statements of truth) and Practice Direction 17A.)
(Paragraphs 7.1 to 7.4 below set out the procedures to be followed where the intended maker of an affidavit or witness statement is unable to read or sign the affidavit/statement.)
If, in proceedings under Part 14 (Adoption, placement and related proceedings), a serial number has been assigned under rule 14.2 or the name of the maker of the affidavit/statement is not being revealed in accordance with rule 29.1, the signature of the maker will be edited from the affidavit/statement before it is served on the other party.
Inability of maker to read or sign affidavit/statement
Where an affidavit is sworn by a deponent who is unable to read or sign it, the person before whom the affidavit is sworn must certify in the jurat that –
(a) that person read the affidavit to the deponent;
(b) the deponent appeared to understand it; and
(c) the deponent signed, or made his mark, in that person's presence.
If that certificate is not included in the jurat, the affidavit may not be used in evidence unless the court is satisfied that it was read to the deponent and that the deponent appeared to understand it. Annex 1 to this practice direction sets out forms of the jurat with the certificate for an affidavit and an affirmation respectively.
Where a witness statement is made by a person who is unable to read or sign the statement, it must contain a certificate made by an authorised person. An authorised person is a person able to administer oaths and take affidavits but need not be independent of the parties or their representatives.
The authorised person must certify –
(a) that the witness statement has been read to the witness;
(b) that the witness appeared to understand it and approved its content as accurate;
(c) that the statement of truth has been read to the witness;
(d) that the witness appeared to understand the statement of truth and the consequences of making a false witness statement; and
(e) that the witness signed or made his or her mark in the presence of the authorised person.
The form of the certificate is set out at Annex 2 to this practice direction.
Filing of affidavits and witness statements
If the court directs that an affidavit/statement is to be filed, it must be filed in the court or Division, or office or Registry of the court or Division, where the action in which it was or is to be used, is proceeding or will proceed.
Where the affidavit/statement is in a foreign language –
(a) the party wishing to rely on it must –
(i) have it translated; and
(ii) must file the foreign language affidavit/statement with the court; and
(b) the translator must sign the translation to certify that it is accurate.
Exhibits
Manner of Exhibiting Documents
A document used in conjunction with an affidavit/statement should be –
(a) shown to and verified by the maker, and remain separate from the affidavit/statement; and
(b) identified by a declaration of the person before whom the affidavit/statement was sworn.
The declaration should be headed with the name of the proceedings in the same way as the affidavit/statement is headed.
The first page of each exhibit should be marked –
(a) as in paragraph 3.2 above; and
(b) with the exhibit mark referred to in the affidavit/statement in accordance with paragraph 4.5 above.
Where the maker makes more than one affidavit/statement, to which there are exhibits, in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each affidavit/statement.
Letters
Copies of individual letters should be collected together and exhibited in a bundle or bundles. They should be arranged in chronological order with the earliest at the top, and firmly secured.
When a bundle of correspondence is exhibited, the exhibit should have a front page attached stating that the bundle consists of original letters and copies. They should be arranged and secured as above and numbered consecutively.
Other documents
Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the court at the hearing.
Court documents must not be exhibited (official copies of such documents prove themselves).
Where an exhibit contains more than one document, a front page should be attached setting out a list of the documents contained in the exhibit. The list should contain the dates of the documents.
Exhibits other than documents
Items other than documents should be clearly marked with an exhibit number or letter in such a manner that the mark cannot become detached from the exhibit.
Small items may be placed in a container and the container appropriately marked.
General provisions
Where an exhibit contains more than one document –
(a) the bundle should not be stapled but should be securely fastened in a way that does not hinder the reading of the documents; and
(b) the pages should be numbered consecutively at bottom centre.
Every page of an exhibit should be clearly legible; typed copies of illegible documents should be included, paginated with ‘a’ numbers.
Where affidavits/statements and exhibits have become numerous, they should be put into separate bundles and the pages numbered consecutively throughout.
Where on account of their bulk the service of exhibits or copies of exhibits on the other parties would be difficult or impracticable, the directions of the court should be sought as to arrangements for bringing the exhibits to the attention of the other parties and as to their custody pending trial.
Miscellaneous
Defects in affidavits, witness statement and exhibits
Where –
(a) an affidavit;
(b) a witness statement; or
(c) an exhibit to either an affidavit or a witness statement,
does not comply with Part 22 or this practice direction in relation to its form, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.
Permission to file a defective affidavit or witness statement or to use a defective exhibit may be obtained from the court where the case is proceeding.
Affirmations
All provisions in this or any other practice direction relating to affidavits apply to affirmations with the following exceptions –
(a) the deponent should commence ‘I (full name) of (residential address) do solemnly and sincerely affirm .’; and
(b) in the jurat the word ‘sworn’ is replaced by the word ‘affirmed’.
Certificate of court officer
In proceedings under Part 7 (Matrimonial and Civil Partnership Proceedings), where the court has ordered that a witness statement, affidavit, affirmation or deposition is not be open to inspection by the public (see rule 22.19(2) and (3)) or that words or passages in the statement etc are not to be open to inspection (see rule 22.19(5)), the court officer will so certify on the statement etc and make any deletions directed by the court under rule 22.19(3).
Video Conferencing
Guidance on the use of video conferencing in the family courts is set out at Annex 3 to this practice direction.
A list of the sites which are available for video conferencing can be found on Her Majesty's Court Service's website at www.hm-courts-service.gov.uk.
Annex 1
Certificate to be used where a deponent to an affidavit is unable to read or sign it
Sworn at . this . day of . Before me, I having first read over the contents of this affidavit to the deponent [if there are exhibits, add ‘and explained the nature and effect of the exhibits referred to in it’] who appeared to understand it and approved its content as accurate, and made his/her* mark on the affidavit in my presence. Or, (after ‘Before me’) the witness to the mark of the deponent having been first sworn that the witness had read over etc. (as above) and that the witness saw the deponent make his/her* mark on the affidavit. (Witness must sign.)
* delete as appropriate
Certificate to be used where a deponent to an affirmation is unable to read or sign it
Affirmed at . this . day of . Before me, I having first read over the contents of this affirmation to the deponent [if there are exhibits, add ‘and explained the nature and effect of the exhibits referred to in it’] who appeared to understand it and approved its content as accurate, and made his/her* mark on the affirmation in my presence. Or, (after ‘Before me’) the witness to the mark of the deponent having been first sworn that the witness had read over etc. (as above) and that the witness saw the deponent make his/her* mark on the affirmation. (Witness must sign.)
* delete as appropriate
Annex 2
Certificate to be used where a witness is unable to read or sign a witness statement
I certify that I [name and address of authorised person] have read over the contents of this witness statement and the statement of truth to the witness [if there are exhibits, add ‘and explained the nature and effect of the exhibits referred to in it’] who (a) appeared to understand the witness statement and approved its content as accurate and (b) appeared to understand the statement of truth and the consequences of making a false witness statement, and [signed the statement] [made his/her mark]* in my presence.
* delete as appropriate
Annex 3
Video Conferencing Guidance
This guidance is for the use of video conferencing (VCF) in proceedings to which the Family Procedure Rules apply. It is in part based, with permission, upon the protocol of the Federal Court of Australia. It is intended to provide a guide to all persons involved in the use of VCF, although it does not attempt to cover all the practical questions which might arise.
Any reference in this guide to a judge is to be taken as including any judge of the family court.
Video conferencing generally
The guidance covers the use of VCF equipment both (a) in a courtroom, whether via equipment which is permanently placed there or via a mobile unit, and (b) in a separate studio or conference room. In either case, the location at which the judge sits is referred to as the 'local site'. The other site or sites to and from which transmission is made are referred to as 'the remote site' and in any particular case any such site may be another courtroom. The guidance applies to cases where VCF is used for the taking of evidence and also to its use for other parts of any legal proceedings.
VCF may be a convenient way of dealing with any part of proceedings- it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.
When used for the taking of evidence, the objective should be to make the VCF session as close as possible to the usual practice in court where evidence is taken in open court. To gain the maximum benefit, several differences have to be taken into account. Some matters, which are taken for granted when evidence is taken in the conventional way, take on a different dimension when it is taken by VCF- for example, the administration of the oath, ensuring that the witness understands who is at the local site and what their various roles are, the raising of any objections to the evidence and the use of documents.
It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (International Legal Matters Unit, Consular Division) with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome.
Time zone differences need to be considered when a witness abroad is to be examined in England or Wales by VCF. The convenience of the witness, the parties, their representatives and the court must all be taken into account. The cost of the use of a commercial studio is usually greater outside normal business hours.
Those involved with VCF need to be aware that, even with the most advanced systems currently available, there are the briefest of delays between the receipt of the picture and that of the accompanying sound. If due allowance is not made for this, there will be a tendency to 'speak over' the witness, whose voice will continue to be heard for a millisecond or so after he or she appears on the screen to have finished speaking.
With current technology, picture quality is good, but not as good as a television picture. The quality of the picture is enhanced if those appearing on VCF monitors keep their movements to a minimum.
Preliminary arrangements
The court's permission is required for any part of any proceedings to be dealt with by means of VCF. Before seeking a direction, the applicant should notify the listing officer, diary manager or other appropriate court officer of the intention to seek it, and should enquire as to the availability of court VCF equipment for the day or days of the proposed VCF. If all parties consent to a direction, permission can be sought by letter, fax or e-mail, although the court may still require an oral hearing. All parties are entitled to be heard on whether or not such a direction should be given and as to its terms. If a witness at a remote site is to give evidence by an interpreter, consideration should be given at this stage as to whether the interpreter should be at the local site or the remote site. If a VCF direction is given, arrangements for the transmission will then need to be made. The court will ordinarily direct that the party seeking permission to use VCF is to be responsible for this. That party is hereafter referred to as ‘the VCF arranging party’.
Subject to any order to the contrary, all costs of the transmission, including the costs of hiring equipment and technical personnel to operate it, will initially be the responsibility of, and must be met by, the VCF arranging party. All reasonable efforts should be made to keep the transmission to a minimum and so keep the costs down. All such costs will be considered to be part of the costs of the proceedings and the court will determine at such subsequent time as is convenient or appropriate who, as between the parties, should be responsible for them and (if appropriate) in what proportions.
The local site will, if practicable, be a courtroom but it may instead be an appropriate studio or conference room. The VCF arranging party must contact the listing officer, diary manager or other appropriate officer of the court which made the VCF direction and make arrangements for the VCF transmission. Details of the remote site, and of the equipment to be used both at the local site (if not being supplied by the court) and the remote site (including the number of ISDN lines and connection speed), together with all necessary contact names and telephone numbers, will have to be provided to the listing officer, diary manager or other court officer. The court will need to be satisfied that any equipment provided by the parties for use at the local site and also that at the remote site is of sufficient quality for a satisfactory transmission. The VCF arranging party must ensure that an appropriate person will be present at the local site to supervise the operation of the VCF throughout the transmission in order to deal with any technical problems. That party must also arrange for a technical assistant to be similarly present at the remote site for like purposes.
It is recommended that the judge, practitioners and witness should arrive at their respective VCF sites about 20 minutes prior to the scheduled commencement of the transmission.
If the local site is not a courtroom, but a conference room or studio, the judge will need to determine who is to sit where. The VCF arranging party must take care to ensure that the number of microphones is adequate for the speakers and that the panning of the camera for the practitioners' table encompasses all legal representatives so that the viewer can see everyone seated there.
If the local site is to be a studio or conference room, the VCF arranging party must ensure that it provides sufficient accommodation to enable a reasonable number of members of the public to attend if appropriate.
In cases where the local site is a studio or conference room, the VCF arranging party should make arrangements, if practicable, for the royal coat of arms to be placed above the judge's seat.
In cases in which the VCF is to be used for the taking of evidence, the VCF arranging party must arrange for recording equipment to be provided by the court which made the VCF direction so that the evidence can be recorded. An associate will normally be present to operate the recording equipment when the local site is a courtroom. The VCF arranging party should take steps to ensure that an associate is present to do likewise when it is a studio or conference room. The equipment should be set up and tested before the VCF transmission. It will often be a valuable safeguard for the VCF arranging party also to arrange for the provision of recording equipment at the remote site. This will provide a useful back-up if there is any reduction in sound quality during the transmission. A direction from the court for the making of such a back-up recording must, however, be obtained first. This is because the proceedings are court proceedings and, save as directed by the court, no other recording of them must be made. The court will direct what is to happen to the back-up recording.
Some countries may require that any oath or affirmation to be taken by a witness accord with local custom rather than the usual form of oath or affirmation used in England and Wales. The VCF arranging party must make all appropriate prior inquiries and put in place all arrangements necessary to enable the oath or affirmation to be taken in accordance with any local custom. That party must be in a position to inform the court what those inquiries were, what their outcome was and what arrangements have been made. If the oath or affirmation can be administered in the manner normal in England and Wales, the VCF arranging party must arrange in advance to have the appropriate holy book at the remote site. The associate will normally administer the oath.
Consideration will need to be given in advance to the documents to which the witness is likely to be referred. The parties should endeavour to agree on this. It will usually be most convenient for a bundle of the copy documents to be prepared in advance, which the VCF arranging party should then send to the remote site.
Additional documents are sometimes quite properly introduced during the course of a witness's evidence. To cater for this, the VCF arranging party should ensure that equipment is available to enable documents to be transmitted between sites during the course of the VCF transmission. Consideration should be given to whether to use a document camera. If it is decided to use one, arrangements for its use will need to be established in advance. The panel operator will need to know the number and size of documents or objects if their images are to be sent by document camera. In many cases, a simpler and sufficient alternative will be to ensure that there are fax transmission and reception facilities at the participating sites.
The hearing
The procedure for conducting the transmission will be determined by the judge. He will determine who is to control the cameras. In cases where the VCF is being used for an application in the course of the proceedings, the judge will ordinarily not enter the local site until both sites are on line. Similarly, at the conclusion of the hearing, he will ordinarily leave the local site while both sites are still on line. The following paragraphs apply primarily to cases where the VCF is being used for the taking of the evidence of a witness at a remote site.
At the beginning of the transmission, the judge will probably wish to introduce himself or herself and the advocates to the witness. He will probably want to know who is at the remote site and will invite the witness to introduce himself or herself and anyone else who is with the witness. The judge may wish to give directions as to the seating arrangements at the remote site so that those present are visible at the local site during the taking of the evidence and to explain to the witness the method of taking the oath or of affirming, the manner in which the evidence will be taken, and who will be conducting the examination and cross-examination. The judge will probably also wish to inform the witness of the matters referred to in paragraphs 7 and 8 (co-ordination of picture with sound, and picture quality).
The examination of the witness at the remote site should follow as closely as possible the practice adopted when a witness is in the courtroom. During examination, cross-examination and re-examination, the witness must be able to see the legal representative asking the question and also any other person (whether another legal representative or the judge) making any statements in regard to the witness's evidence. It will in practice be most convenient if everyone remains seated throughout the transmission.
PRACTICE DIRECTION 17A – STATEMENTS OF TRUTH This Practice Direction supplements FPR Part 17
Documents to be verified by a statement of truth
1.1
Rule 17.2 sets out the documents which must be verified by a statement of truth.
1.2
If an applicant wishes to rely on matters set out in his application notice as evidence, the application notice must be verified by a statement of truth.
1.3
An expert's report should also be verified by a statement of truth. For the form of the statement of truth verifying an expert's report (which differs from that set out below), see paragraph 9.1(j) of Practice Direction 25B (The Duties Of An Expert, The Expert’s Report and Arrangements For An Expert To Attend Court).
1.4
In addition, the following documents must be verified by a statement of truth –
(a) an application notice for –
(i) a third party debt order (CPR Part 72 as modified by rule 33.24);
(ii) a hardship payment order (CPR Part 72 as modified by rule 33.24); or
(iii) a charging order (CPR Part 73 as modified by rule 33.25); and
(b) a notice of objections to an account being taken by the court, unless verified by an affidavit or witness statement.
1.5
The statement of truth may be contained in the document it verifies or it may be in a separate document served subsequently, in which case it must identify the document to which it relates.
1.6
Where the form to be used includes a jurat for the content to be verified by an affidavit, then a statement of truth is not required in addition.
1.7
In this Practice Direction, ‘statement of case’ has the meaning given to it by rule 17.1.
Form of the statement of truth
2.1
“[I understand] [the (applicant or as the case may be) understands] that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truthThe form of the statement of truth verifying a statement of case or an application notice should be as follows:
‘[I believe] [the (applicant or as may be) believes] that the facts stated in this [name document being verified] are true.’
2.2
“I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truthThe form of the statement of truth verifying a witness statement should be as follows:
'I believe that the facts stated in this witness statement are true.’
2.3
Where the statement of truth is contained in a separate document, the document containing the statement of truth must be headed with the title of and court reference for the proceedings. The document being verified should be identified in the statement of truth as follows –
(a) application form: ‘the application form issued on [date]’;
(b) statement of case: ‘the (application or answer as may be) served on [name of party] on [date]’;
(c) application notice: ‘the application notice issued on [date] for [set out the remedy sought]’;
(d) witness statement: ‘the witness statement filed on [date] or served on [party] on [date]’.
2.4
Practice Direction 9A makes provision in relation to statements of truth to be included in costs estimates and particulars of costs to be filed and served in accordance with rule 9.27(1), (2), (3) or (4).”.
Who may sign the statement of truth
3.1
In a statement of case or an application notice, the statement of truth must be signed by –
(a) the party or his litigation friend; or
(b) the legal representative of the party or litigation friend.
3.2
A statement of truth verifying a witness statement must be signed by the witness.
3.3
A statement of truth verifying a notice of objections to an account must be signed by the objecting party or his or her legal representative.
3.4
Where a document is to be verified on behalf of a company or corporation, subject to paragraph 3.7 below, the statement of truth must be signed by a person holding a senior position in the company or corporation. That person must state the office or position he or she holds.
3.5
Each of the following persons is a person holding a senior position –
(a) in respect of a registered company or corporation, a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation; and
(b) in respect of a corporation which is not a registered company, in addition to those persons set out in (a), the major, chairman, president, chief executive of a local authority or town clerk or other similar officer of the corporation.
3.6
Where the document is to be verified on behalf of a partnership, those who may sign the statement of truth are –
(a) any of the partners; or
(b) a person having the management or control of the partnership business.
3.7
Where a party is legally represented, the legal representative may sign the statement of truth on his or her behalf. The statement signed by the legal representative will refer to the client's belief, not his or her own. In signing he or she must state the capacity in which he or she signs and the name of his or her firm where appropriate.
3.8
Where a legal representative has signed a statement of truth, his or her signature will be taken by the court as his or her statement –
(a) that the client on whose behalf he or she has signed had authorised him or her to do so;
(b) that before signing he or she had explained to the client that in signing the statement of truth he or she would be confirming the client's belief that the facts stated in the document were true; and
(c) that before signing he or she had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 17.6).
3.9
A legal representative who signs a statement of truth must print his or her full name clearly beneath his or her signature.
3.10
The individual who signs a statement of truth must sign in his or her own name and not that of his or her firm or employer.
3.11
The following are examples of the possible application of this practice direction describing who may sign a statement of truth verifying statements in documents other than a witness statement. These are only examples and not an indication of how a court might apply the practice direction to a specific situation.
Managing Agent
An agent who manages property or investments for the party cannot sign a statement of truth. It must be signed by the party or by the legal representative of the party.
Trusts
Where some or all of the trustees comprise a single party one, some or all of the trustees comprising the party may sign a statement of truth. The legal representative of the trustees may sign it.
Companies
Paragraphs 3.4 and 3.5 apply. The word ‘manager’ will be construed in the context of the phrase ‘a person holding a senior position’ which it is used to define. The court will consider the size of the company and the importance and nature of the proceedings. It would expect the manager signing the statement of truth to to have personal knowledge of the content of the document or to be responsible for those who have that knowledge of the content. A small company may not have a manager, apart from the directors, who holds a senior position. A large company will have many such managers. In a large company with specialist claims, insurance or legal departments the statement may be signed by the manager of such a department if he or she is responsible for handling the claim or managing the staff handling it.
Inability of persons to read or sign documents to be verified by a statement of truth
4.1
Where a document containing a statement of truth is to be signed by a person who is unable to read or sign the document, it must contain a certificate made by an authorised person.
4.2
An authorised person is a person able to administer oaths and take affidavits but need not be independent of the parties or their representatives.
4.3
The authorised person must certify –
(a) that the document has been read to the person signing it;
(b) that the person appeared to understand it and approved its content as accurate;
(c) that the declaration of truth has been read to that person;
(d) that that person appeared to understand the declaration and the consequences of making a false declaration; and
(e) that that person signed or made his mark in the presence of the authorised person.
4.4
The form of the certificate is set out at the Annex to this Practice Direction.
4A.1
Where
(a) a form referred to in Practice Direction 5A; or
(b) a form completed or generated by electronic means in accordance with Part 41 FPR,
makes provision for an electronic signature of a statement of truth, references in this Practice Direction to “sign”, “signs”, “signed” and “signing” are to be read as including an electronic signature. An electronic signature could, for example, be in the form of the following being included next to a statement of truth: a tick box, a printed name, an image of a signature or a digital signature generated by commercial software. (Section 7 of the Electronic Communications Act 2000 provides for the use of an electronic signature in an electronic communication.)”.
Consequences of failure to verify
5.1
If a statement of case is not verified by a statement of truth, the statement of case will remain effective unless it is struck out, but a party may not rely on the contents of a statement of case as evidence until it has been verified by a statement of truth.
5.2
Any party may apply to the court for an order that unless within such period as the court may specify the statement of case is verified by the service of a statement of truth, the statement of case will be struck out.
5.3
The usual order for the costs of an application referred to in paragraph 5.2 will be that the costs be paid by the party who had failed to verify, in any event and immediately.
Penalty
6.
Attention is drawn to rule 17.6 which sets out the consequences of verifying a statement of case containing a false statement without an honest belief in its truth, and to the procedures set out in Part 37 (Applications and proceedings in relation to contempt of court).
Annex
Certificate to be used where a person is unable to read or sign a document to be verified by a statement of truth
I certify that I [name and address of authorised person] have read the contents of this document and the declaration of truth to the person signing the document [if there are exhibits, add ‘and explained the nature and effect of the exhibits referred to in it’] who appeared to understand (a) the document and approved its content as accurate and (b) the declaration of truth and the consequences of making a false declaration, and made his or her mark in my presence.
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