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Statutory Instrument 2005 No. 559 (L. 11)The Family Proceedings (Amendment No. 3) Rules 2005(The document as of February, 2008) STATUTORY INSTRUMENTS2005 No. 559 (L. 11)FAMILY PROCEEDINGSSUPREME COURT OF ENGLAND AND WALESCOUNTY COURTS, ENGLAND AND WALESThe Family Proceedings (Amendment No. 3) Rules 2005
We, the authority having power under section 40(1) of the Matrimonial and Family Proceedings Act 1984[1] to make rules of court for the purposes of family proceedings in the High Court and county courts, in exercise of the powers conferred by that section, make the following Rules: Citation, commencement and interpretation 1. - (1) These Rules may be cited as the Family Proceedings (Amendment No. 3) Rules 2005. (2) Rules 1, 3(b), 16 to 19, 25 and 26 shall come into force on 1st April 2005 and the remainder of these Rules shall come into force on 4th April 2005. (3) In these Rules a reference to a rule or Appendix by number alone is a reference to the rule or Appendix so numbered in the Family Proceedings Rules 1991[2]. Amendments to the Family Proceedings Rules 1991 2.In the arrangement of rules -
3.In rule 1.2(1) -
4.After rule 2.6, insert -
2.6A. - (1) This rule applies to a petition for nullity brought under section 12(g) of, or paragraph 11(1)(e) of Schedule 1 to, the Act of 1973[5]. (2) The petitioner must file with his petition a copy of an interim gender recognition certificate issued to him or to the respondent (as the case might be), unless otherwise directed on an application made ex parte. (3) The proper officer must give notice in writing to the Secretary of State of a petition to which this rule applies when it is presented under rule 2.6. (4) A notice in writing under paragraph (3) must state the names of the parties to the petition, its case number and the court in which it is pending and must -
(b) otherwise, state -
(ii) the last address at which the parties to the marriage have lived together as husband and wife; and (iii) such further particulars as the proper officer considers appropriate. Supplemental: petition for nullity on ground that respondent's gender had become acquired gender at time of marriage 5.After rule 2.9, insert -
2.9A. - (1) This rule applies where a petition for nullity is brought under -
(b) section 12(h) of the Act of 1973 and a full gender recognition certificate has been issued to the respondent. (2) Where the respondent returns an acknowledgement of service in Form M6 to the court office, he must file with it a copy of that interim certificate or that full certificate (as the case might be), unless otherwise directed on an application made ex parte." 6.After rule 2.12, insert -
2.12A. - (1) This rule applies to an answer under rule 2.12(1) which prays for a decree of nullity under section 12(g) of, or paragraph 11(1)(e) of Schedule 1 to, the Act of 1973. (2) The respondent must file with his answer a copy of an interim gender recognition certificate issued to him or to the petitioner (as the case might be), unless otherwise directed on an application made ex parte. (3) The proper officer must give notice in writing to the Secretary of State of an answer to which this rule applies when it is filed. (4) A notice in writing under paragraph (3) must state the names of the parties to the petition, its case number and the court in which it is pending and must -
(b) otherwise, state -
(ii) the last address at which the parties to the marriage have lived together as husband and wife; and (iii) such further particulars as the proper officer considers appropriate. Supplemental: answer praying for decree of nullity on ground that petitioner's gender had become acquired gender at time of marriage 7.After rule 2.13, insert -
2.13A. - (1) This rule applies where an answer is filed under rule 2.12(1) which prays for a decree of nullity under -
(b) section 12(h) of the Act of 1973 and a full gender recognition certificate has been issued to the petitioner. (2) Where the petitioner files a reply under rule 2.13(1) to the answer, he must file with it a copy of that interim certificate or that full certificate (as the case might be), unless otherwise directed on an application made ex parte." 8.In rule 2.49(2) -
(b) after sub-paragraph (h), insert -
(ii) that that interim certificate has not been revoked under section 8(6)(b) of that Act; and (iii) that no appeal is pending against an order under section 8(6)(a) of that Act". 9.After rule 2.51, insert -
2.51AA. - (1) This rule applies to an application made under section 6(1) of the Gender Recognition Act 2004 in respect of a full gender recognition certificate issued by a court under section 5(1) of that Act. (2) The application must be made to the court which issued the certificate, unless otherwise directed. (3) Where the applicant is -
(b) the Secretary of State, the person to whom the certificate was issued must be a respondent. (4) Where the court issues a corrected gender recognition certificate under section 6(4) of the Gender Recognition Act 2004, the proper officer must send a copy of the corrected certificate to the Secretary of State." 10.In rules 3.1(4), 3.2(4) and 3.6(5), for "Form M6", substitute "Form M23A".
3.24. - (1) A reference to the High Court under section 8(5) of the Gender Recognition Act 2004 must be made by an originating summons issued out of the principal registry. (2) The Secretary of State is to be referred to as the applicant and the respondent is the person whose application under section 1(1), 5(2) or 6(1) of the Gender Recognition Act 2004 was granted. (3) The originating summons must be served on the President of Gender Recognition Panels and such other persons as the court may direct. (4) Where the applicant knows that -
(ii) serve the originating summons on the court in which that petition is pending (where he has sufficient information to do so); (b) a full gender recognition certificate has been issued to the respondent under section 5(1) of the Gender Recognition Act 2004, he must give particulars of this in the originating summons. (5) A copy of any order of the court made on the reference must be served on -
(b) the President of Gender Recognition Panels, (c) where sufficient particulars have been provided under paragraph (4)(a)(i), on the court in which any such cause is pending, and may be served on such other persons as the court thinks fit." 16.In rules 4.1, 4A.1, 9.5 and 10.14A, after "officer of the Service", wherever it appears, insert "or a Welsh family proceedings officer".
(b) in paragraphs (1) to (4), after "the officer of the Service", wherever it appears, insert "or the Welsh family proceedings officer"; and (c) in paragraph (1), for ""officer of the Service"", substitute ""officer of the Service or Welsh family proceedings officer"". 18.In rule 4.11A after paragraph (2) insert -
(b) the children's guardian or the court considers that he is of sufficient understanding to do so." 19.In rule 4.23 -
(b) enabling a person to perform functions required under section 38(1) of the Children Act 2004; or (c) assisting an officer of the Service or a Welsh family proceedings officer who is appointed by the court under any enactment to perform his functions."; and (b) In paragraph (4), for "an officer of the Service to any other officer of the Service" substitute "an officer of the Service or a Welsh family proceedings officer to any other officer of the Service or Welsh family proceedings officer". 20.After rule 8.3, insert -
8.4. - (1) RSC Order 55[7] applies to an appeal to the High Court under section 8(1) of the Gender Recognition Act 2004 subject to the modifications made by this rule. (2) The notice of the originating motion must be -
(b) served on the Secretary of State in addition to the person to be served under RSC Order 55, rule 4(1). (3) The Secretary of State may appear and be heard in the proceedings on the appeal. 21.In rule 10.8(1), after "rules", insert "(other than rule 3.2(5))".
10.21B. - (1) This rule applies to all documents in family proceedings brought under -
(b) the Gender Recognition Act 2004. (2) Documents to which this rule applies must, while they are in the custody of the court, be kept in a place of special security." 23.In Appendix 1 -
(ii) in paragraph 5(b)(iii) for the words "any rights of occupation you may have in the matrimonial home under the Matrimonial Homes Act 1983"' substitute "any matrimonial home rights you may have under Part IV of the Family Law Act 1996[8]"; and (iii) after paragraph 13, insert -
15.If the petition is brought on the ground that your gender was the acquired gender at the time of the marriage under the Gender Recognition Act 2004 (under section 12(h) of the Matrimonial Causes Act 1973) and a full gender recognition certificate has been issued to you, you must, when returning the acknowledgement of service, attach to it a copy of your full certificate."
(c) in Form M23, omit "Take Notice that" to the end of the form; and (d) after Form M23, insert Form M23A as set out in Schedule 2 to these Rules. 24.In paragraph 2 of Appendix 2 for "section 12(e) or (f)", substitute "section 12(e), (f) or (h)".
(b) the proceedings in which he was appointed are still continuing; and (c) that person has become a Welsh family proceedings officer, then for the purposes of the Family Proceedings Rules 1991 that person's appointment shall continue notwithstanding that he is no longer an officer of the Service.
(b) the proceedings in which the report was requested are still continuing; and (c) that person has become a Welsh family proceedings officer, then for the purposes of the Family Proceedings Rules 1991 the request shall continue to have effect notwithstanding that the person is no longer an officer of the Service.
and if you do not attend at that time and place, such order will be made as the Court thinks just. This notice is accompanied by the following documents:
Dated this day of 20 Rule 3.1(4), 3.2(4) and 3.6(5)
You should read carefully this Notice of Proceedings before answering the questions that follow.
has been presented to the court. A sealed copy of the application and a copy of the applicant's affidavit in support are delivered with this notice. 1.You must complete the acknowledgement of service and send it so that it reaches the court within 14 days after you receive this notice. Delay in returning this form may add to the costs. 2.If you intend to instruct a solicitor to act for you, you should at once give him all the documents that have been served on you, so that he may send the acknowledgement to the Court on your behalf. If you do not intend to instruct a solicitor, you should give an address in the acknowledgement of service so that any documents affecting your interests which are sent to you will, in fact, reach you. This address should be your place of residence or, if you do not reside in England and Wales the address of a place in England and Wales to which documents may be sent to you. Please make certain that you notify the court immediately if you change your address. 3.Where the application is for failure to provide reasonable maintenance and you wish to challenge the jurisdiction of the court to hear the application, you must file in the court an affidavit setting out the grounds of your challenge. Where you do not wish to challenge the jurisdiction of the court (or where the court decides the question of jurisdiction in the applicant's favour) you must file an affidavit stating:
(b) any allegation which you wish to make against the applicant; and (c) full particulars of your property and income, unless otherwise directed. In either case the affidavit must be sent, together with a copy for the applicant, so as to reach the Court within 14 days after the time allowed for sending the acknowledgement of service (or, if you have unsuccessfully challenged the jurisdiction, within 14 days after the Court has decided that the necessary jurisdiction exists). If you include in your affidavit an allegation of adultery or of an improper association with a named person, the affidavit must be accompanied by an extra copy for service on that person.
Dated this day of 20
I am [We are] acting for the Respondent in this matter.
Address for Service of documents: (This note is not part of the Rules) These Rules amend the Family Proceedings Rules 1991 (S.I. 1991/1247) ("FPR") in consequence of the Gender Recognition Act 2004 (c. 7) ("the 2004 Act"), to make changes consequent on the introduction of Welsh family proceedings officers, and to make several further, minor, changes. The 2004 Act provides for transsexual persons legal recognition in their acquired gender on the issue of a full gender recognition certificate. A person may apply to a Gender Recognition Panel. If the applicant meets the statutory criteria and is unmarried, the Panel will issue to him a full gender recognition certificate. If he is married, the Panel will issue to him an interim gender recognition certificate. The 2004 Act amended the Matrimonial Causes Act 1973 (c. 18) ("the 1973 Act") to provide two new grounds of nullity. The first is where an interim gender recognition certificate has, after the time of the marriage, been issued to either party to the marriage (section 12(g) of and paragraph 11(1)(e) of Schedule 1 to the 1973 Act, as amended by section 4(4) of and Schedule 2 to the 2004 Act). Where a person obtains a decree absolute of nullity on this ground, the court must issue to him a full gender recognition certificate. The second new ground of nullity is where the respondent is a person whose gender at the time of the marriage had become the acquired gender under the 2004 Act (section 12(h) of the 1973 Act, as amended by section 11 of and paragraphs 4 to 6 of Schedule 4 to the 2004 Act). A person's gender only becomes the acquired gender under the 2004 Act when a full gender recognition certificate is issued to him. Rule 4 inserts FPR rules 2.6A and 2.6B, which require a petitioner to file with his petition a copy of the interim gender recognition certificate (if the petition is brought on the first new ground of nullity) or a copy of the full gender recognition certificate (if the petition is brought on the second new ground). The petitioner may apply to court if he is unable to do this. FPR rule 2.6A requires the proper officer of the court to notify the Secretary of State of petitions brought under the first new ground. Rule 6 inserts FPR rules 2.12A and 2.12B, which make corresponding provision where either new ground of nullity is raised for the first time in an answer to a petition. Rule 5 inserts FPR rule 2.9A, which requires respondents to petitions on the new grounds of nullity to file with any acknowledgement of service a copy of the appropriate certificate. Corresponding provision for replies to answers raising either of the new grounds for the first time is made by FPR rule 2.13A inserted by rule 7. Rule 9 inserts FPR rule 2.51AA which makes provision for applications made under section 6(1) of the 2004 Act (where a court has issued a full gender recognition certificate which contains an error, an application may be made under this section for the issue of a corrected certificate). Rule 15 inserts FPR rule 3.24 which makes provision for references made under section 8(5) of the 2004 Act (where the Secretary of State considers an application for a gender recognition certificate to have been secured by fraud). Where the Secretary of State is aware that nullity proceedings have been brought on the first new ground, he must give particulars of this and serve notice of the section 8(5) reference on the court in which those proceedings are pending. Rule 8 amends FPR rule 2.49(2), so that a decree on the first new ground of nullity should not be made absolute if a search of that court's records discloses extant section 8(5) proceedings. Rule 20 inserts FPR rule 8.4 which makes provision for appeals under section 8(1) of the 2004 Act (which provides a statutory appeal to the High Court on a point of law against a decision of a Gender Recognition Panel to reject an application made to it). Rule 22 makes provision for the storage of documents concerning gender recognition. Rules 23(a) and 24 make minor amendments, largely to reflect the changes made by these rules to FPR Part 2. Rules 3(b) and 16 to 19 amend the Family Proceedings Rules 1991 to enable functions performed by an officer of the Children and Family Court Advisory and Support Service ("CAFCASS") under the Family Proceedings Rules 1991 to be performed by a Welsh family proceedings officer. The amendment follows the transfer of functions from CAFCASS to the National Assembly for Wales by section 35 of the Children Act 2004 for children ordinarily resident in Wales. A Welsh family proceedings officer is defined under subsection (4) of that section as any member of the staff of the National Assembly for Wales ("the Assembly") appointed to exercise the functions of a Welsh family proceedings officer, and any other individual exercising those functions by virtue of section 36(2) and (4) of that Act (which allow the Assembly to make arrangements with organisations and individuals to perform the functions of Welsh family proceedings officers). Rules 25 and 26 make transitional provision to deal with the situation where a CAFCASS officer who is already acting as a children and family reporter or a children's guardian in proceedings becomes a Welsh family proceedings officer. Rules 10 to 14, 21, 23(b) - (d) and Schedules 1 and 2 amend the FPR by making a number of minor changes to Part 3 (other Matrimonial etc Proceedings). Rules 12 and 14 remove redundant references to Form M11 (Notice of Application for Ancillary Relief). This form was revoked by S.I. 1999/3491 with effect from 5 June 2000 and replaced by Forms A and B. Rule 13 amends a current inconsistency in rule 3.9A (Enforcement of orders made on applications under Part IV of the Family Law Act 1996) so that certain provisions of the Rules of the Supreme Court 1965 and County Court Rules 1981 may apply, with necessary modifications, to the enforcement of orders made on the court's own motion under Part IV of the Family Law Act 1996. Under the Matrimonial Causes Rules 1977, Form 6 was a combined form of Acknowledgement of Service that could be used for both matrimonial proceedings and other forms of originating process. The revised Form M6 introduced by the FPR was specifically designed for use in divorce proceedings, however, references to the use of the old version of the form were carried over into Part 3 of the FPR. Rule 23(d) resolves this inconsistency by inserting into Appendix 1, a new Form M23A; and rules 10 and 21 substitute references to this new form (in place of Form M6) where appropriate. Rule 11 makes a further consequential change. Rules 23(b) and (c) make changes to Form M20 and M23 in light of the introduction of Form M23A. Notes: [1]1984 c. 42; section 40 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18, paragraph 50 and the Civil Procedure Act 1997 (c. 12), Schedule 2, paragraph 3 and will be repealed (on a date to be appointed) by the Courts Act 2003 (c. 39), Schedule 8, paragraph 278 and Schedule 10.back [2]S.I. 1991/1247; relevant amending instruments are S.I. 1992/456, 1992/2067, 1993/295, 1994/2165, 1994/3155, 1996/816, 1997/1056, 1998/1901, 2000/2267, 2001/821, 2003/184, 2003/2839.back [3]2004 c. 7.back [4]2004 c. 31.back [5]The reference is to the Matrimonial Causes Act 1973 (c. 18); section 12 as amended by the Mental Health Act 1983 (c. 20), Schedule 4, paragraph 34 and (on a date to be appointed) by the Gender Recognition Act 2004 (c. 7), Schedule 2, paragraph 2 and Schedule 4, paragraphs 4 and 5; paragraph 11 of Schedule 1 as amended (on a date to be appointed) by the Gender Recognition Act 2004 (c. 7), Schedule 2, paragraph 4.back [6]1997 c. 25. Subsection 62(3A) as amended by S.I. 2003/3191, Schedule, paragraph 1, article 3 (c) and 6. Repealed (on a date to be appointed) by Courts Act 2003 (c. 39), Schedule 10.back [7]The reference is to the Rules of the Supreme Court 1965 (S.I. 1965/1776), frequently amended. The Rules of the Supreme Court were revoked and replaced by the Civil Procedure Rules 1998 (S.I. 1998/3132), but rule 1.3 of the Family Proceedings Rules 1991 provides that those Rules as they were in force immediately before 26th April 1999 continue to apply with any necessary modifications to family proceedings in the High Court.back [8]1996 c. 27.back [9]1989 c. 41. Amended, so far as relevant, by Criminal Justice and Court Services Act 2000 (c. 43), Schedule 7, Part II, paragraphs 87, 88 and 91; Children Act 2004 (c. 31), Schedule 3, paragraphs 5 - 11. Modified by S.I. 1991/2684 Schedule 1, articles 4 and 5.back ISBN0 11 072479 8 -- Back --
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