https://www.justice.gov.uk/courts/procedure-rules/family/rules_pd_menu These are the rules for family court. 

We have added some of this information below.  Please refer to the official website for an extensive list of rules.  

 

PART 1 - OVERRIDING OBJECTIVE


 

The overriding objective

1.1

(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c) ensuring that the parties are on an equal footing;

(d) saving expense; and

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

Application by the court of the overriding objective

1.2

(1) The court must seek to give effect to the overriding objective when it –

(a) exercises any power given to it by these rules; or

(b) interprets any rule.

Duty of the parties

1.3

The parties are required to help the court to further the overriding objective.

Court's duty to manage cases

1.4

(1) The court must further the overriding objective by actively managing cases.

(2) Active case management includes–

(a) setting timetables or otherwise controlling the progress of the case;

(b) identifying at an early stage–

(i) the issues;and

(ii) who should be a party to the proceedings;

(c) deciding promptly –

(i) which issues need full investigation and hearing and which do not; and

(ii) the procedure to be followed in the case;

(d) deciding the order in which issues are to be resolved;

(e) controlling the use of expert evidence;

(f) encouraging the parties to use a non-court dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;

(g) helping the parties to settle the whole or part of the case;

(h) encouraging the parties to co-operate with each other in the conduct of proceedings;

(i) considering whether the likely benefits of taking a particular step justify the cost of taking it;

(j) dealing with as many aspects of the case as it can on the same occasion;

(k) dealing with the case without the parties needing to attend at court;

(l) making use of technology; and

(m) giving directions to ensure that the case proceeds quickly and efficiently.

The Welsh language

1.5

(1) Nothing in the overriding objective undermines the principles provided by section 1 of the Welsh Language (Wales) Measure 2011(1) that the Welsh language has official status in Wales or by section 22 of the Welsh Language Act 1993(2) that in any legal proceedings in Wales the Welsh language may be used by any person who desires to use it.

(2) The parties are required to assist the court to put into effect the principles set out in paragraph (1).

 

PART 3A - VULNERABLE PERSONS: PARTICIPATION IN PROCEEDINGS AND GIVING EVIDENCE

 

 

Interpretation

3A.1. In this Part—

“child” means a person under the age of 18 years whether or not the child is the subject of the proceedings, except that—

(a)in adoption proceedings, it also includes a person who is the subject of proceedings and has attained the age of 18 years before the proceedings are concluded; and
(b)in proceedings brought under  the 1980 Hague Convention( ) or the European Convention( ), it means a person under the age of 16 years who is the subject of proceedings;

“intermediary” means a person whose function is to—

(a)communicate questions put to a witness or party;
(b)communicate to any person asking such questions the answers given by the witness or party in reply to them; and
(c)explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions;

“live link” means a live television link or other arrangement whereby a witness or party, while absent from the courtroom or other place where the proceedings are being held, is able to see and hear a person there and to be seen and heard by the judge, legal representatives acting in the proceedings and other persons appointed to assist a witness or party;

“mental disorder” has the meaning given in section 1 of the Mental Health Act 1983( );

“participation direction” means—

(a)a general case management direction made for the purpose of assisting a witness or party to give evidence or participate in proceedings; or
(b)a direction that a witness or party should have the assistance of one or more of the measures in rule 3A.8; and
references to “quality of evidence” are to its quality in terms of completeness, coherence and accuracy; and for this purpose “coherence” refers to a witness’s or a party’s ability in giving evidence to give answers which address the questions put to the witness or the party and which can be understood both individually and collectively.

Application of provisions in this Part

3A.2.

(1) Rule 3A.4 does not apply to a party who is a child.
(2) Rules 3A.3 to 3A.5 do not apply to a party who is a protected party.

Court’s duty to consider vulnerability of a party or witness

3A.3.

(1) When considering the vulnerability of a party or witness as mentioned in rule 3A.4 or 3A.5, the court must have regard in particular to the matters set out in paragraphs (a) to (j) and (m) of rule

3A.7.(2) Practice Direction 3AA gives guidance about vulnerability.

Court’s duty to consider how a party can participate in the proceedings

3A.4

(1) The court must consider whether a party’s participation in the proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions.
(2) Before making such participation directions, the court must consider any views expressed by the party about participating in the proceedings.
Court’s duty to consider how a party or a witness can give evidence

3A.5.

(1) The court must consider whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions.
(2) Before making such participation directions, the court must consider any views expressed by the party or witness about giving evidence.

Protected parties

3A.6.

(1) The court must consider whether it is necessary to make one or more participation directions to assist—

(a)the protected party participating in proceedings; or
(b)the protected party giving evidence.

(2) Before making such participation directions, the court must consider any views expressed by the protected party’s litigation friend about the protected party’s participation in the proceedings or that party giving evidence.

(Part 15 contains rules about representation of a protected party. Practice Direction 15B contains provisions about the ability of a protected party to give evidence.)

What the court must have regard to

3A.7

When deciding whether to make one or more participation directions the court must have regard in particular to—

(a)the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of—
(i)any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or
(ii)any members of the family of the party or witness;
(b)whether the party or witness—
(i)suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning;
(ii)has a physical disability or suffers from a physical disorder; or
(iii)is undergoing medical treatment;
(c)the nature and extent of the information before the court;
(d)the issues arising in the proceedings including (but not limited to) any concerns arising in relation to abuse;
(e)whether a matter is contentious;
(f)the age, maturity and understanding of the party or witness;
(g)the social and cultural background and ethnic origins of the party or witness;
(h)the domestic circumstances and religious beliefs of the party or witness;
(i)any questions which the court is putting or causing to be put to a witness in accordance with section 31G(6) of the 1984 Act( );
(j)any characteristic of the party or witness which is relevant to the participation direction which may be made;
(k)whether any measure is available to the court;
(l)the costs of any available measure; and
(m)any other matter set out in Practice Direction 3AA.

Measures

3A.8

(1) The measures referred to in this Part are those which—
(a)prevent a party or witness from seeing another party or witness;
(b)allow a party or witness to participate in hearings and give evidence by live link;
(c)provide for a party or witness to use a device to help communicate;
(d)provide for a party or witness to participate in proceedings with the assistance of an intermediary;
(e)provide for a party or witness to be questioned in court with the assistance of an intermediary; or
(f)do anything else which is set out in Practice Direction 3AA.

(2) If the family court makes a direction for a measure which is not available where the court is sitting, it may direct that the court will sit at the nearest or most convenient location where the family court sits and the measure is available

(3) If the High Court makes a direction for a measure which is not available where the court is sitting, it may direct that the court will sit at the nearest or most convenient location where the High Court sits and the measure is available.
(4) Nothing in these rules gives the court power to direct that public funding must be available to provide a measure.
(5) If a direction for a measure is considered by the court to be necessary but the measure is not available to the court, the court must set out in its order the reasons why the measure is not available.
When the duties of the court apply and recording reasons for decisions made under this Part

3A.9

(1) The court’s duties under rules 3A.3 to 3A.6 apply as soon as possible after the start of proceedings and continue until the resolution of the proceedings.

(2) The court must set out its reasons on the court order for—
(a)making, varying or revoking directions referred to in this Part; or
(b)deciding not to make, vary or revoke directions referred to in this Part, in proceedings that involve a vulnerable person or protected party.

Application for directions under this Part

3A.10

(1) An application for directions under this Part may be made on the application form initiating the proceedings or during the proceedings by any person filing an application notice.
(2) The application form or application notice must contain the matters set out in Practice Direction 3AA.
(3) Subject to paragraph (2), the Part 18 procedure applies to an application for directions made during the proceedings.
(4) This rule is subject to any direction of the court.
Procedure where the court makes directions of its own initiative

3A.11

Where the court proposes to make a participation direction of its own initiative the procedure set out in rule 4.3(2) to (6) applies.
Functions of officers of the Service and Welsh family proceedings officers

3A.12

Nothing in this Part gives the court power to direct that an officer of the Service or a Welsh family proceedings officer should perform any function beyond the functions conferred upon such officers by any other enactment.

 

PRACTICE DIRECTION 4A – STRIKING OUT A STATEMENT OF CASE

 

See also Part 4, Practice Direction 4B

PRACTICE DIRECTION 4A – STRIKING OUT A STATEMENT OF CASEThis Practice Direction supplements FPR Part 4, rule 4.4 (Power to strike out a statement of case)

 

Introduction

1.1

Rule 4.4 enables the court to strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending the application (rule 4.4 (1)(a)), or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings (rule 4.4(1)(b)). These powers may be exercised on an application by a party or on the court's own initiative.

1.1A

Before exercising these powers the court must take into account any written evidence filed in relation to the application or answer (rule 4.4(1A)). For example, the court must take into account the financial statement (Form E) filed in relation to an application for a property adjustment order, pension sharing order and other financial orders.

1.2

This practice direction sets out the procedure a party should follow to make an application for an order under rule 4.4.

 

Examples of cases within the rule

2.1

The following are examples of cases where the court may conclude that an application falls within rule 4.4(1)(a) –

(a) those which set out no facts indicating what the application is about;

(b) those which are incoherent and make no sense;

(c) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable application against the respondent.

2.2

An application may fall within rule 4.4(1)(b) where it cannot be justified, for example because it is frivolous, scurrilous or obviously ill-founded.

2.3

An answer may fall within rule 4.4(1)(a) where it consists of a bare denial or otherwise sets out no coherent statement of facts.

2.4

Omitted.

2.5

The examples set out above are intended only as illustrations.

2.6

Where a rule, practice direction or order states ‘shall be struck out or dismissed’ or ‘will be struck out or dismissed’ this means that the order striking out or dismissing the proceedings will itself bring the proceedings to an end and that no further order of the court is required.

 

Applications which appear to fall within rule 4.4(1)(a) or (b)

3.1

A court officer who is asked to issue an application form but believes the application may fall within rule 4.4(1)(a) or (b) should issue the application form, but may then consult the court (under rule 4.2) before returning the form to the applicant or taking any other step to serve the respondent. The court may of its own initiative make an immediate order designed to ensure that the application is disposed of or (as the case may be) proceeds in a way that accords with the rules.

3.2

The court may allow the applicant a hearing before deciding whether to make such an order.

3.3

Orders the court may make include –

(a) an order that the application be stayed until further order;

(b) an order that the application form be retained by the court and not served until the stay is lifted;

(c) an order that no application by the applicant to lift the stay be heard unless the applicant files such further documents (for example a witness statement or an amended application form) as may be specified in the order.

3.4

Where the court makes any such order or, subsequently, an order lifting the stay, it may give directions about the service on the respondent of the order and any other documents on the court file.

3.5

The fact that the court allows an application referred to it by a court officer to proceed does not prejudice the right of any party to apply for any order against the applicant.

 

Answers which appear to fall within rule 4.4(1)(a) or (b)

4.1

A court officer may similarly consult the court about any document filed which purports to be an answer and which the officer believes may fall within rule 4.4 (1)(a) or (b).

4.2

If the court decides that the document falls within rule 4.4(1)(a) or (b) it may on its own initiative make an order striking it out. Where the court does so it may extend the time for the respondent to file a proper answer.

4.3

The court may allow the respondent a hearing before deciding whether to make such an order.

4.4

Alternatively the court may make an order requiring the respondent within a stated time to clarify the answer or to give additional information about it. The order may provide that the answer will be struck out if the respondent does not comply.

4.5

The fact that the court does not strike out an answer on its own initiative does not prejudice the right of the applicant to apply for any order against the respondent.

 

General provisions

5.1

The court may exercise its powers under rule 4.4(1)(a) or (b) on application by a party to the proceedings or on its own initiative at any time.

5.2

Where the court at a hearing strikes out all or part of a party's statement of case it may enter such judgment for the other party as that party appears entitled to.

 

Applications for orders under rule 4.4(1)

6.1

Attention is drawn to Part 18 (Procedure for Other Applications in Proceedings) and to the practice direction that supplements it. The practice direction requires all applications to be made as soon as possible.

6.2

While many applications under rule 4.4(1) can be made without evidence in support, the applicant should consider whether facts need to be proved and, if so, whether evidence in support should be filed and served.

 

PRACTICE DIRECTION 12L – CHILDREN ACT 1989: RISK ASSESSMENTS UNDER SECTION 16A

 

 

PRACTICE DIRECTION 12L – CHILDREN ACT 1989: RISK ASSESSMENTS UNDER SECTION 16A

1.1

This Practice Direction applies to any family proceedings in the High Court or the family court in which a risk assessment is made under section 16A of the Children Act 1989 (‘the 1989 Act’). It has effect from 1st October 2007.

1.2

Section 16A(2) of the 1989 Act provides that, if in carrying out any function to which the section applies (as set out in section 16A(1)), an officer of the Service or a Welsh family proceedings officer is given cause to suspect that the child concerned is at risk of harm, the officer must make a risk assessment in relation to the child and provide the risk assessment to the court.

1.3

The duty to provide the risk assessment to the court arises irrespective of the outcome of the assessment. Where an officer is given cause to suspect that the child concerned is at risk of harm and makes a risk assessment in accordance with section 16A(2), the officer must provide the assessment to the court, even if he or she reaches the conclusion that there is no risk of harm to the child.

1.4

The fact that a risk assessment has been carried out is a material fact that should be placed before the court, whatever the outcome of the assessment. In reporting the outcome to the court, the officer should make clear the factor or factors that triggered the decision to carry out the assessment.

1.5

Issued by the President of the Family Division, as the nominee of the Lord Chief Justice, with the agreement of the Lord Chancellor.

 

PRACTICE DIRECTION 12A - CARE, SUPERVISION AND OTHER PART 4 PROCEEDINGS: GUIDE TO CASE MANAGEMENT

 

PRACTICE DIRECTION 12A – CARE, SUPERVISION AND OTHER PART 4 PROCEEDINGS: GUIDE TO CASE MANAGEMENT

The key stages of the court process

1.1

The Public Law Outline set out in the Table below contains an outline of –

(1) the order of the different stages of the process;

(2) the matters to be considered at the main case management hearings;

(3) the latest timescales within which the main stages of the process should take place in order to resolve the proceedings within 26 weeks.

1.2

In the Public Law Outline –

(1) ‘CMH’ means the Case Management Hearing;

(2) ‘FCMH’ means Further Case Management Hearing;

(3) ‘ICO’ means interim care order;

(4) ‘IRH’ means the Issues Resolution Hearing;

(5) ‘LA’ means the Local Authority which is applying for a care or supervision order or a final order in other Part 4 proceedings;

(6) ‘OS’ means the Official Solicitor.

1.3

In applying the provisions of FPR Part 12 and the Public Law Outline the court and the parties must also have regard to –

(1) all other relevant rules and Practice Directions and in particular –

  • FPR Part 1 (Overriding Objective);
  • FPR Part 2 and Practice Direction 2C (relating to justices’ legal adviser functions);
  • FPR Part 4 ( General Case Management Powers);
  • FPR Part 15 (Representation of Protected Parties) and Practice Direction 15B (Adults Who May Be Protected Parties and Children Who May Become Protected Parties in Family Proceedings);
  • FPR Part 18 (Procedure for Other Applications in Proceedings);
  • FPR Part 22 (Evidence);
  • FPR Part 24 (Witnesses and depositions generally);
  • FPR Part 25 (Experts) and the Experts Practice Directions;
  • FPR 27.6 and Practice Direction 27A (Court Bundles);
  • FPR 30 (Appeals) and Practice Direction 30A (Appeals);

(2) the Allocation Rules;

(3) omitted

(4) President's Guidance issued from time to time on –

  • Distribution of business of the family court;
  • Judicial continuity and deployment;
  • Prescribed templates and orders;

(5) International instruments –

  • The 1996 Hague Convention;

(6) Guidance relating to protected parties and others with a disability –

  • Protected Parties in Family Proceedings: Checklist For the Appointment of a Litigation Friend (including the Official Solicitor) (published in Family Law (January 2014);
  • The Mental Capacity Act 2005 (Transfer of Proceedings) Order 2007 SI 2007/1899, relating to young people over 16 where they are likely to lack decision-making capacity at age 18.

Public Law Outline

Pre-proceedingsPre-proceedings ChecklistAnnex Documents are the documents specified in the Annex to the Application Form which are to be attached to that form and filed with the court:
  • Social Work Chronology
  • Social Work Statement and Genogram
  • The current assessments relating to the child and/or the family and friends of the child to which the Social Work Statement refers and on which the LA relies
  • Care Plan
  • Index of Checklist Documents

Checklist documents (already existing on the LA's files) are –

a. Evidential documents including –

  • Previous court orders including foreign orders and judgments/reasons
  • Any assessment materials relevant to the key issues including capacity to litigate, section 7 and 37 reports
  • Single, joint or inter-agency materials (e.g., health and education/Home Office and Immigration Tribunal documents);

b. Decision-making records including –

  • Records of key discussions with the family
  • Key LA minutes and records for the child
  • Pre-existing care plans (e.g., child in need plan, looked after child plan and child protection plan)
  • Letters Before Proceedings
Only Checklist documents in (a) are to be served with the application formChecklist Documents in (b) are to be disclosed on request by any partyChecklist documents are not to be –
  • filed with the court unless the court directs otherwise; and
  • older than 2 years before the date of issue of the proceedings unless reliance is placed on the same in the LA's evidence

Evidence in support of directions sought –

  • Evidence in support of any directions sought by Day 2 (see Stage 1 table below).

Evidence in support of any directions sought by Day 2 should be filed with the court and served with the application form.

 
Stage 1 Issue and AllocationDay 1 and Day 2 (see interpretation section)On Day 1 (Day of issue):
  • The LA files the Application Form and Annex Documents and sends copies to Cafcass/CAFCASS CYMRU
  • The LA notifies the court of the need for an urgent preliminary case management hearing or an urgent contested ICO hearing where this is known or expected
  • Court officer issues application
Within a day of issue (Day 2):
  • Court considers jurisdiction in a case with an international element
  • Court considers any application for directions on exceptions from notification or automatic party status rules and issues any directions for or related to further hearing
  • Court considers initial allocation to specified level of judge, in accordance with the Allocation Rules and any President's Guidance on the distribution of business
  • LA serves the Application Form, Annex Documents and evidential Checklist Documents on the parties together with the notice of date and time of CMH and any urgent hearing
  • Court gives standard directions on Issue and Allocation including:

    —  Checking compliance with Pre-Proceedings Checklist including service of any missing Annex Documents

    —  Appointing Children's Guardian (to be allocated by Cafcass/CAFCASS CYMRU)

    —  Appointing solicitor for the child only if necessary

    —  Appointing (if the person to be appointed consents) a litigation friend for any protected party or any non subject child who is a party, including the OS where appropriate

    —  Identifying whether a request has been made or should be made to a Central Authority or other competent authority in a foreign state or a consular authority in England and Wales in a case with an international element

    —  Filing and service of a LA Case Summary

    —  Filing and service of a Case Analysis by the Children's Guardian

    —  Filing and Serving the Parents' Response

    —  Sending a request for disclosure to, e.g., the police or health service body

    —  Filing and serving an application for permission relating to experts under Part 25 on a date prior to the advocates meeting for the CMH

    —  Directing the solicitor for the child to arrange an advocates' meeting no later than 2 business days before the CMH

    —  Listing the CMH

  • Court considers any request for an urgent preliminary case management hearing or an urgent contested ICO hearing and where necessary lists the hearing and gives additional directions.
  • Court officer sends copy Notice of Hearing of the CMH and any urgent hearing by email to Cafcass/ CAFCASS CYMRU.
 
Stage 2 – Case Management HearingAdvocates' Meeting (including any litigants in person)Case Management HearingNo later than 2 business days before CMH (or FCMH if it is necessary)CMH : Not before day 12 and not later than day 18    A FCMH is to be held only if necessary, it is to be listed as soon as possible and in any event no later than day 25
  • Consider information on the Application Form and Annex documents, the LA Case Summary, and the Case Analysis
  • Identify the parties' positions to be recited in the draft Case Management Order
  • Identify the parties' positions about jurisdiction, in particular arising out of any international element
  • If necessary, identify proposed experts and draft questions in accordance with Part 25 and the Experts Practice Directions
  • Identify any disclosure that in the advocates' views is necessary
  • Immediately notify the court of the need for a contested ICO hearing and any issue about allocation
  • LA advocate to file a draft Case Management Order in prescribed form with court by 11a.m. on the business day before the CMH and/or FCMH
  • Court gives detailed case management directions, including:

    —  Considering jurisdiction in a case with an international element;

    —  Confirming allocation

    —  Drawing up the timetable for the child and the timetable for the proceedings and considering if an extension is necessary

    —  Identifying additional parties, intervenors and representation (including confirming that Cafcass/CAFCASS CYMRU have allocated a Children's Guardian and that a litigation friend is appointed for any protected party or non-subject child)

    —  Giving directions for the determination of any disputed issue about litigation capacity

    —  Identifying the key issues

    —  Identifying the evidence necessary to enable the court to resolve the key issues

    —  Deciding whether there is a real issue about threshold to be resolved

    —  Determining any application made under Part 25 and otherwise ensuring compliance with Part 25 where it is necessary for expert(s) to be instructed

    —   Identifying any necessary disclosure and if appropriate giving directions

    —   Giving directions for any concurrent or proposed placement order proceedings

    —   Ensuring compliance with the court's directions

    —   If a FCMH is necessary, directing an advocates' meeting and Case Analysis if required

    —   Directing filing of any threshold agreement, final evidence and Care Plan and responses to those documents for the IRH

    —   Directing a Case Analysis for the IRH

    —   Directing an advocates' meeting for the IRH

    —   Listing (any FCMH) IRH, Final Hearing (including early Final Hearing)

    —   Giving directions for special measures and/or interpreters and intermediaries

    —   Issuing the Case Management Order

 
Stage 3 – Issues Resolution HearingAdvocates' Meeting (including any litigants in person)IRHNo later than 7 business days before the IRHAs directed by the court, in accordance with the timetable for the proceedings
  • Review evidence and the positions of the parties
  • Identify the advocates' views of –

    —   the remaining key issues and how the issues may be resolved or narrowed at the IRH including by the making of final orders

    —   the further evidence which is required to be heard to enable the key issues to be resolved or narrowed at the IRH

    —   the evidence that is relevant and the witnesses that are required at the final hearing

    —   the need for a contested hearing and/or time for oral evidence to be given at the IRH

  • LA advocate to –

    —   notify the court immediately of the outcome of the discussion at the meeting

    —   file a draft Case Management Order with the court by 11a.m. on the business day before the IRH

  • Court identifies the key issue(s) (if any) to be determined and the extent to which those issues can be resolved or narrowed at the IRH
  • Court considers whether the IRH can be used as a final hearing
  • Court resolves or narrows the issues by hearing evidence
  • Court identifies the evidence to be heard on the issues which remain to be resolved at the final hearing
  • Court gives final case management directions including:

    —   Any extension of the timetable for the proceedings which is necessary

    —   Filing of the threshold agreement or a statement of facts/issues remaining to be determined

    —   Filing of –

    • —   Final evidence and Care Plan

    • —   Case Analysis for Final Hearing (if required)

    • —   Witness templates

    • —   Skeleton arguments

    —   Judicial reading list/reading time, including time estimate and an estimate for judgment writing time

    —   Ensuring Compliance with PD27A (the Bundles Practice Direction)

    —   Listing the Final Hearing

  • Court issues Case Management Order

Flexible powers of the court

2.1

Attention is drawn to the flexible powers of the court either following the issue of the application or at any other stage in the proceedings.

2.2

The court may give directions without a hearing including setting a date for the Final Hearing or a period within which the Final Hearing will take place. The steps, which the court will ordinarily take at the various stages of the proceedings provided for in the Public Law Outline, may be taken by the court at another stage in the proceedings if the circumstances of the case merit this approach.

2.3

The flexible powers of the court include the ability for the court to cancel or repeat a particular hearing. For example, if the issue on which the case turns can with reasonable practicability be crystallised and resolved by taking evidence at an IRH then such a flexible approach must be taken in accordance with the overriding objective and to secure compliance with section 1(2) of the 1989 Act and resolving the proceedings within 26 weeks or the period for the time being specified by the court.

2.4

Where a party has requested an urgent hearing a) to enable the court to give immediate directions or orders to facilitate any case management issue which is to be considered at the CMH, or b) to decide whether an ICO is necessary, the court may list such a hearing at any appropriate time before the CMH and give directions for that hearing. It is anticipated that an urgent preliminary case management hearing will only be necessary to consider issues such as jurisdiction, parentage, party status, capacity to litigate, disclosure and whether there is, or should be, a request to a Central Authority or other competent authority in a foreign state or consular authority in England and Wales in an international case. It is not intended that any urgent hearing will delay the CMH.

2.5

Where it is anticipated that oral evidence may be required at the CMH, FCMH or IRH, the court must be notified in accordance with Stages 2 and 3 of the Public Law Outline well in advance and directions sought for the conduct of the hearing.

2.6

It is expected that full case management will take place at the CMH. It follows that the parties must be prepared to deal with all relevant case management issues, as identified in Stage 2 of the Public Law Outline. A FCMH should only be directed where necessary and must not be regarded as a routine step in proceedings.

Compliance with pre-proceedings checklist

3.1

It is recognised that in a small minority of cases the circumstances are such that the safety and welfare of the child may be jeopardised if the start of proceedings is delayed until all of the documents appropriate to the case and referred to in the Pre-proceedings Checklist are available. The safety and welfare of the child should never be put in jeopardy by delaying issuing proceedings whether because of lack of documentation or otherwise. (Nothing in this Practice Direction affects an application for an emergency protection order under section 44 of the 1989 Act). Also, where an application for an interim order is urgent, then the hearing of that application is NOT expected to be postponed until the Case Management Hearing. The Case Management Hearing is still to be held not before day 12 and not later than day 18 in accordance with the Public Law Outline and guidance in this Practice Direction. If an urgent preliminary Case Management Hearing or an urgent contested ICO hearing is held before the CMH, the court should not dispense with the CMH unless all of the parties have been sufficiently prepared and the court has been able to deal with all case management issues which would have come before it at the CMH.

3.2

The court recognises that the preparation may need to be varied to suit the circumstances of the case. In cases where any of the Annex Documents required to be attached to the Application Form are not available at the time of issue of the application, the court will consider making directions on issue about when any missing documentation is to be filed. The expectation is that there must be a good reason why one or more of the documents are not available. Further directions relating to any missing documentation will also be made at the Case Management Hearing.

3.3

Directions may be sought in the initial application for an exception to notification requirements under paragraph 3.1 of Practice Direction 12C or rule 12.4, or for party status under rule 12.3, and evidence in support should as far as possible be included with the application (which would be made separately under Part 18). Before deciding whether to seek such an exception or not, the Local Authority should discuss the issue with the other parties to the proceedings, before proceedings are issued.

Allocation

4.1

The court considers the allocation of proceedings in accordance with the Allocation Rules and any Guidance issued by the President on distribution of business of the family court. The justices’ legal adviser (with responsibility for gatekeeping and allocation of proceedings) and/or a district judge (with responsibility for allocation and gatekeeping of proceedings) will consider initial allocation as provided for in any Guidance issued by the President on distribution of business of the family court.

The timetable for the child and the timetable for proceedings

5.1

5.1 The timetable for the proceedings –

(1) The court will draw up a timetable for the proceedings with a view to disposing of the application –

(a) without delay; and

(b) in any event within 26 weeks beginning with the day on which the application was issued in accordance with section 32(1)(a)(ii) of the Children Act 1989.

(2) The court, when drawing up or revising a timetable under paragraph (1), will in particular have regard to –

(a) the impact which the timetable or any revised timetable would have on the welfare of the child to whom the application relates; and

(b) the impact which the timetable or any revised timetable would have on the duration and conduct of the proceedings.

5.2

The impact which the timetable for the proceedings, any revision or extension of that timetable would have on the welfare of the child to whom the application relates are matters to which the court is to have particular regard. The court will use the Timetable for the Child to assess the impact of these matters on the welfare of the child and to draw up and revise the timetable for the proceedings.

5.3

The ‘Timetable for the Child is the timetable set by the court which takes into account dates which are important to the child's welfare and development.

5.4

The timetable for the proceedings is set having particular regard to the Timetable for the Child and the Timetable for the Child needs to be reviewed regularly. Where adjustments are made to the Timetable for the Child, the timetable for the proceedings will have to be reviewed consistently with resolving the proceedings within 26 weeks or the period for the time being specified by the court.

5.5

Examples of the dates the court will record and take into account when setting the Timetable for the Child are the dates of –

(1) any formal review by the Local Authority of the case of a looked after child (within the meaning of section 22(1) of the 1989 Act);

(2) any significant educational steps, including the child taking up a place at a new school and, where applicable, any review by the Local Authority of a statement of the child's special educational needs;

(3) any health care steps, including assessment by a paediatrician or other specialist;

(4) any review of Local Authority plans for the child, including any plans for permanence through adoption, Special Guardianship or placement with parents or relatives;

(5) any change or proposed change of the child's placement;

(6) any significant change in the child's social or family circumstances; or

(7) any timetable for the determination of an issue in a case with an international element.

5.6

To identify the Timetable for the Child, the applicant is required to provide the information needed about the significant steps in the child's life in the Application Form and the Social Work Statement and to update this information regularly taking into account information received from others involved in the child's life such as the parties, members of the child's family, the person who is caring for the child, the children's guardian, the Independent Reviewing Officer , the child's key social worker and any Central Authority or competent authority in a foreign state or a consular authority in England and Wales in a case with an international element.

5.7

Where more than one child is the subject of the proceedings, the court should consider and will set a Timetable for the Child for each child. The children may not all have the same timetable, and the court will consider the appropriate progress of the proceedings in relation to each child.

5.8

Where there are parallel care proceedings and criminal proceedings against a person connected with the child for a serious offence against the child, linked directions hearings should where practicable take place as the case progresses. The timing of the proceedings in a linked care and criminal case should appear in the Timetable for the Child. The time limit of resolving the proceedings within 26 weeks applies unless a longer timetable has been set by the court in order to resolve the proceedings justly in accordance with section 32(1)(a)(ii) and (5) of the 1989 Act. Early disclosure and listing of hearings is necessary in proceedings in a linked care and criminal case.

Extensions to the timetable for proceedings

6.1

The court is required to draw up a timetable for proceedings with a view to disposing of the application without delay and in any event within 26 weeks. If proceedings can be resolved earlier, then they should be. A standard timetable and process is expected to be followed in respect of the giving of standard directions on issue and allocation and other matters which should be carried out by the court on issue, including setting and giving directions for the Case Management Hearing.

6.2

Having regard to the circumstances of the particular case, the court may consider that it is necessary to extend the time by which the proceedings are to be resolved beyond 26 weeks to enable the court to resolve the proceedings justly ( see section 32 (5) of the 1989 Act). When making this decision, the court is to take account of the guidance that extensions are not to be granted routinely and are to be seen as requiring specific justification (see section 32(7) of the 1989 Act). The decision and reason(s) for extending a case should be recorded in writing (in the Case Management Order) and orally stated in court, so that all parties are aware of the reasons for delay in the case (see FPR 12.26C). The Case Management Order must contain a record of this information, as well as the impact of the court's decision on the welfare of the child.

6.3

The court may extend the period within which proceedings are intended to be resolved on its own initiative or on application. Applications for an extension should, wherever possible, only be made so that they are considered at any hearing for which a date has been fixed or for which a date is about to be fixed. Where a date for a hearing has been fixed, a party who wishes to make an application at that hearing but does not have sufficient time to file an application notice should as soon as possible inform the court (if possible in writing) and, if possible, the other parties of the nature of the application and the reason for it. The party should then make the application orally at the hearing.

6.4

If the court agrees an extension is necessary, an initial extension to the time limit may be granted for up to eight weeks (or less if directed) in order to resolve the case justly (see section 32(8) of the 1989 Act). If more time is necessary, in order to resolve the proceedings justly, a further extension of up to eight weeks may be agreed by the court. There is no limit on the number of extensions that may be granted in a particular case.

6.5

If the court considers that the timetable for the proceedings will require an extension beyond the next eight week period in order to resolve the proceedings justly, the Case Management Order should –

(1) state the reason(s) why it is necessary to have a further extension;

(2) fix the date of the next effective hearing (which might be in a period shorter than a further eight weeks); and

(3) indicate whether it is appropriate for the next application for an extension of the timetable to be considered on paper.

6.6

The expectation is that, subject to paragraph 6.5, extensions should be considered at a hearing and that a court will not approve proposals for the management of a case under FPR 12.15 where the consequence of those proposals is that the case is unlikely to be resolved within 26 weeks or other period for the time being allowed for resolution of the proceedings. In accordance with FPR 4.1(3)(e), the court may hold a hearing and receive evidence by telephone or by using any other method of direct oral communication. When deciding whether to extend the timetable, the court must have regard to the impact of any ensuing timetable revision on the welfare of the child ( see section 32(6) of the 1989 Act).

Interpretation

7.1

‘Allocation Rules’ mean any rules relating to composition of the court and distribution of business made under section 31D of the Matrimonial and Family Proceedings Act 1984;

‘Care Plan’ is a separate document from the evidence that is filed by the local authority. It is a ‘section 31A plan’ referred to in section 31A of the 1989 Act which complies with guidance as to content issued by the Secretary of State;

‘Case Analysis’ means a written or, if there is insufficient time for a written, an oral outline of the case from the perspective of the child's best interests prepared by the children's guardian or Welsh family proceedings officer for the CMH or FCMH (where one is necessary) and IRH or as otherwise directed by the court, incorporating an analysis of the key issues that need to be resolved in the case including –

(a) a threshold analysis;

(b) a case management analysis, including an analysis of the timetable for the proceedings, an analysis of the Timetable for the Child and the evidence which any party proposes is necessary to resolve the issues;

(c) a parenting capability analysis;

(d) a child impact analysis, including an analysis of the ascertainable wishes and feelings of the child and the impact on the welfare of the child of any application to adjourn a hearing or extend the timetable for the proceedings;

(e) an early permanence analysis including an analysis of the proposed placements and contact framework; by reference to a welfare and proportionality analysis.

(f) whether and if so what communication it is proposed there should be during the proceedings with the child by the court;

‘Case Management Order’ is the prescribed form of order referred to in any Guidance issued by the President from time to time on prescribed templates and orders;

‘Day’ means ‘business day’. ‘Day 1’ is the day of issue and ‘Day 2’ is the next business day following the day of issue of proceedings. ‘Day 12’, ‘Day 18’ and ‘Day 25’ are respectively the 11th, 17th and the 24th business days after the day of issue of proceedings (Day 1). ‘26 weeks’ means 26 calendar weeks beginning on the day of issue of proceedings (Day 1);

‘Experts Practice Directions’ mean –

(a) Practice Direction 25A (Experts - Emergencies and Pre Proceedings Instructions);

(b) Practice Direction 25B (The Duties of An Expert, The Expert's Report and Arrangements For An Expert To Attend Court);

(c) Practice Direction 25C (Children's Proceedings - The Use Of Single Joint Experts and The Process Leading to An Expert Being Instructed or Expert Evidence Being Put Before the Court);

(d) Practice Direction 25E (Discussions Between Experts in Family Proceedings);

‘Genogram’ means a family tree, setting out in diagrammatic form the child's family and extended family members and their relationship with the child;

‘Index of Checklist Documents’ means a list of Checklist Documents referred to in the Public Law Outline Pre-Proceedings Checklist which is divided into two parts with Part A being the documents referred to in column 2, paragraph (a) of the Pre- Proceedings Checklist and Part B being those referred to in column 2, paragraph (b) of the Pre-proceedings Checklist;

‘International instruments’

 

 

‘The 1996 Hague Convention’ means the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children;

‘Letter Before Proceedings’ means any letter from the Local Authority containing written notification to the parents and others with parental responsibility for the child of the Local Authority's likely intention to apply to court for a care or supervision order and any related subsequent correspondence confirming the Local Authority's position;

"Local Authority Case Summary" means a document prepared by the Local Authority legal representative for each case management hearing in the form referred to in any Guidance issued by the President from time to time on prescribed templates and orders;

‘Parents' Response’ means a document from either or both of the parents containing –

(a) in no more than two pages, the parents' response to the Threshold Statement, and

(b) the parents' placement proposals including the identity and whereabouts of all relatives and friends they propose be considered by the court;

(c) Information which may be relevant to a person's capacity to litigate including information about any referrals to mental health services and adult services;

‘Section 7 report’ means any report under section 7 of the 1989 Act;

‘Section 37 report’ means any report by the Local Authority to the court as a result of a direction under section 37 of the 1989 Act;

‘Social Work Chronology’ means a schedule containing –

(a) a succinct summary of the length of involvement of the local authority with the family and in particular with the child;

(b) a succinct summary of the significant dates and events in the child's life in chronological order- i.e. a running record up to the issue of the proceedings; providing such information under the following headings-

(i) serial number;

(ii) date;

(iii) event-detail;

(iv) witness or document reference (where applicable);

‘Social Work Statement’ means a statement prepared by the Local Authority limited to the following evidence –

Summary

(a) The order sought;

(b) Succinct summary of reasons with reference as appropriate to the Welfare Checklist;

Family

(c) Family members and relationships especially the primary carers and significant adults/other children;

(d) Genogram;

Threshold

(e) Precipitating events;

(f) Background circumstances –

(i) summary of children's services involvement cross-referenced to the chronology;

(ii) previous court orders and emergency steps;

(iii) previous assessments;

(g) Summary of significant harm and or likelihood of significant harm which the LA will seek to establish by evidence or concession;

Parenting capability

(h) Assessment of child's needs;

(i) Assessment of parental capability to meet needs;

(j) Analysis of why there is a gap between parental capability and the child's needs;

(k) Assessment of other significant adults who may be carers;

Child impact

(l) Wishes and feelings of the child(ren);

(m) Timetable for the Child;

(n) Delay and timetable for the proceedings;

Permanence and contact

(o) Parallel planning;

(p) Realistic placement options by reference to a welfare and proportionality analysis;

(q) Contact framework;

Case Management

(r) Evidence and assessments necessary and outstanding;

(s) Any information about any person's litigation capacity, mental health issues, disabilities or vulnerabilities that is relevant to their capability to participate in the proceedings; and

(t) Case management proposals.

‘Standard Directions on Issue and Allocation’ means directions given by the court on issue and upon allocation in the prescribed form referred to in any Guidance issued by the President from time to time on prescribed templates and orders;

‘Threshold Statement’ means a written outline by the legal representative of the LA in the application form of the facts which the LA will seek to establish by evidence or concession to satisfy the threshold criteria under s31(2) of the 1989 Act limited to no more than 2 pages;

‘Welfare Checklist’ means the list of matters which is set out in section 1(3) of the 1989 Act and to which the court is to have particular regard in accordance with section (1)(3) and (4).

 

PRACTICE DIRECTION 17A – STATEMENTS OF TRUTH

 

 

See also Part 17

PRACTICE DIRECTION 17A – STATEMENTS OF TRUTHThis 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.

 

PART 22 - EVIDENCE

 

 

See also Practice Direction 22A

Part 22 EVIDENCE

Contents of this PartTitleNumberI GENERAL RULES Power of court to control evidenceRule 22.1Evidence of witnesses – general ruleRule 22.2Evidence by video link or other meansRule 22.3Witness statementsRule 22.4Service of witness statements for use at the final hearingRule 22.5Use at the final hearing of witness statements which have been servedRule 22.6Evidence at hearings other than the final hearingRule 22.7Order for cross-examinationRule 22.8Witness summariesRule 22.9Consequence of failure to serve witness statementRule 22.10Cross-examination on a witness statementRule 22.11Affidavit evidenceRule 22.12Form of affidavitRule 22.13Affidavit made outside the jurisdictionRule 22.14Notice to admit factsRule 22.15Notice to admit or produce documentsRule 22.16Notarial acts and instrumentsRule 22.17II RULES APPLYING ONLY TO PARTICULAR PROCEEDINGS Scope of this ChapterRule 22.18Availability of witness statements for inspection during the final hearingRule 22.19Use of witness statements for other purposesRule 22.20

I GENERAL RULES

Power of court to control evidence

22.1

(1) The court may control the evidence by giving directions as to –

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(c) the way in which the evidence is to be placed before the court.

(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.

(3) The court may permit a party to adduce evidence, or to seek to rely on a document, in respect of which that party has failed to comply with the requirements of this Part.

(4) The court may limit cross-examination(GL).

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Evidence of witnesses – general rule

22.2

(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved –

(a) at the final hearing, by their oral evidence; and

(b) at any other hearing, by their evidence in writing.

(2) The general rule does not apply –

(a) to proceedings under Part 12 for secure accommodation orders, interim care orders or interim supervision orders; or

(b) where an enactment, any of these rules, a practice direction or a court order provides to the contrary.

(Section 45(7) of the Children Act 1989 (emergency protection orders) is an example of an enactment which makes provision relating to the evidence that a court may take into account when hearing an application.)

Evidence by video link or other means

22.3

The court may allow a witness to give evidence through a video link or by other means.

Witness statements

22.4

(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

(2) A witness statement must comply with the requirements set out in the Practice Direction 22A.

(Part 17 requires a witness statement to be verified by a statement of truth.)

Service of witness statements for use at the final hearing

22.5

(1) The court may give directions as to service on the other parties of any witness statement of the oral evidence on which a party intends to rely in relation to any issues of fact to be decided at the final hearing.

(2) The court may give directions as to –

(a) the order in which witness statements are to be served; and

(b) whether or not the witness statements are to be filed.

(3) Where the court directs that a court officer is to serve a witness statement on the other parties, any reference in this Chapter to a party serving a witness statement is to be read as including a reference to a court officer serving the statement.

Use at the final hearing of witness statements which have been served

22.6

(1) If a party –

(a) has served a witness statement; and

(b) wishes to rely at the final hearing on the evidence of the witness who made the statement,

that party must call the witness to give oral evidence unless the court directs otherwise or the party puts the statement in as hearsay evidence.

(Part 23 (miscellaneous rules about evidence) contains provisions about hearsay evidence.)

(2) The witness statement of a witness called to give oral evidence under paragraph (1) is to stand as the evidence in chief(GL) of that witness unless the court directs otherwise.

(3) A witness giving oral evidence at the final hearing may with the permission of the court –

(a) amplify his witness statement; and

(b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.

(4) The court will give permission under paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of the witness statement.

(5) If a party who has served a witness statement does not –

(a) call the witness to give evidence at the final hearing; or

(b) put the witness statement in as hearsay evidence,

any other party may put the witness statement in as hearsay evidence.

Evidence at hearings other than the final hearing

22.7

(1) Subject to paragraph (2), the general rule is that evidence at hearings other than the final hearing is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise.

(2) At hearings other than the final hearing, a party may rely on the matters set out in that party's 

(a) application form;

(b) application notice; or

(c) answer,

if the application form, application notice or answer, as the case may be, is verified by a statement of truth or if the court gives that party permission to do so without such verification.

Order for cross-examination

22.8

(1) Where, at a hearing other than the final hearing, evidence is given in writing, any party may apply to the court for permission to cross-examine(GL) the person giving the evidence.

(2) If the court gives permission under paragraph (1) but the person in question does not attend, that person's evidence may not be used unless the court directs otherwise.

Witness summaries

22.9

(1) A party who –

(a) is required to serve a witness statement for use at any hearing; but

(b) is unable to obtain one,

may apply, without notice, for permission to serve a witness summary instead.

(2) A witness summary is a summary of  –

(a) the evidence, if known, which would otherwise be included in a witness statement; or

(b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.

(3) Unless the court directs otherwise, a witness summary must include the name and address of the intended witness.

(4) Unless the court directs otherwise, a witness summary must be served within the period in which a witness statement would have had to be served.

(5) Where a party serves a witness summary, so far as practicable rules 22.4(2)(form of witness statements), 22.5 (service of witness statements for use at the final hearing) and 22.6(3) (amplifying witness statements) apply to the summary.

Consequence of failure to serve witness statement

22.10

If a witness statement for use at the final hearing is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

Cross-examination on a witness statement

22.11

A witness who is called to give evidence at the final hearing may be cross-examined(GL) on  the witness statement, whether or not the statement or any part of it was referred to during the witness's evidence in chief(GL).

Affidavit evidence

22.12

(1) Evidence must be given by affidavit(GL) instead of or in addition to a witness statement if this is required by the court, a provision contained in any other rule, a practice direction or any other enactment.

Form of affidavit

22.13

An affidavit(GL) must comply with the requirements set out in the Practice Direction 22A.


Affidavit made outside the jurisdiction

22.14

A person may make an affidavit (GL) outside the jurisdiction in accordance with –

(a) this Part; or

(b) the law of the place where the affidavit(GL) is made.

Notice to admit facts

22.15

(1) A party may serve notice on another party requiring the other party to admit the facts, or the part of the case of the serving party, specified in the notice.

(2) A notice to admit facts must be served no later than 21 days before the final hearing.

(3) Where the other party makes any admission in answer to the notice, the admission may be used against that party only –

(a) in the proceedings in which the notice to admit is served; and

(b) by the party who served the notice.

(4) The court may allow a party to amend or withdraw any admission made by that party on such terms as it thinks just.

Notice to admit or produce documents

22.16

(1) A party to whom a document is disclosed is deemed to admit the authenticity of that document unless notice is served by that party that the party wishes the document to be proved at the final hearing.

(2) A notice to prove a document must be served –

(a) by the latest date for serving witness statements; or

(b) within 7 days beginning with the date of service of the document, whichever is later.

Notarial acts and instruments

22.17

A notarial act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved.

II RULES APPLYING ONLY TO PARTICULAR PROCEEDINGS

Scope of this Chapter

22.18

This Chapter of this Part applies to affidavits(GL) and affirmations as it applies to witness statements.

Availability of witness statements for inspection during the final hearing

22.19

(1) This rule applies to proceedings under Part 7 (matrimonial and civil partnership proceedings).

(2) A witness statement which stands as  evidence in chief(GL) is open to inspection during the course of the final hearing unless the court directs otherwise.

(3) Any person may ask for a direction that a witness statement is not open to inspection.

(4) The court will not make a direction under paragraph (2) unless it is satisfied that a witness statement should not be open to inspection because of –

(a) the interests of justice;

(b) the public interest;

(c) the nature of any expert medical evidence in the statement;

(d) the nature of any confidential information (including information relating to personal financial matters) in the statement; or

(e) the need to protect the interests of any child or protected party.

(5) The court may exclude from inspection words or passages in the witness statement.

Use of witness statements for other purposes

22.20

(1) This rule applies to proceedings under Part 7 (matrimonial and civil partnership proceedings) or Part 9 (financial remedies).

(2) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.

(3) Paragraph (2) does not apply if and to the extent that –

(a) the court gives permission for some other use; or

(b) the witness statement has been put in evidence at a hearing held in public.

 

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