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Claire Heppenstall: Schedule 1 Applications and the New Family Procedure Rules 2010

Date:8 FEB 2011

Claire Heppenstall is a family law barrister at 1 Garden Court Chambers specialising in Ancillary Relief, International & Private Child and Child Abduction. Claire will be speaking at the forthcoming Effective Guide to Schedule 1 Children Act 1989 Claims seminar on 11 March along with David Burles, Richard Tambling and the event chair, Janet Bazley QC. Click here to book a place at the early bird discount price.

Claire HeppenstallIn December 2010, Parliament quietly approved the new Family Procedure Rules 2010. Indeed, so quiet was the approval that even now this significant and long awaited event for family lawyers has not been considered worthy of mention on the HM Gov website news section! The absence of fanfare may have left this recent development currently below the radar for most busy practitioners but it cannot be ignored for long given the fast approaching date on which it comes into force. (It is the 6 April 2011 for all those of you looking blank).

The Family Procedure Rules 2010 provide a completely new code of practice for all family proceedings and entirely replace the current Rules (although much modified over time) which have been in force since 1991. The aim of the new scheme is to create for family proceedings the type of structured and simplified approach which has been in force with civil proceedings since the advent of the CPR.

Schedule 1 applications are now caught within the definition of "financial remedy" set out in R 2.3 FPR 2010 and are therefore covered by Part 9 of the new rules which deals with applications for a financial remedy.

For those of us who deal with financial provision applications under Schedule 1 of the Children Act 1989, it is interesting to see that the long-awaited changes anticipated by Thorpe LJ in Morgan v Hill [2007] 1 FLR 1480 and adopted voluntarily by the profession for the most part since then, ie use of Forms E and quasi-FDRs, will now be standard procedure under the new system. It was always an anomaly under the current rules that the revised procedure governing ancillary relief claims was not extended to include Schedule 1 applications, particularly when a common feature of these cases tends to be the significant wealth of the non-custodial parent. The lack of formal procedure and the simplistic nature of the Form C10A statement of means were always clearly inadequate to allow a proper examination of the merits of the claim.

All is still not entirely clear however, as although there will be a first appointment 12- 16 weeks after issue (see r 9.12 FPR 2010) and potentially an FDR appointment (subject to the court's discretion under r.915 FPR 2010), the rules (at r 9.14 FPR 2010) make it clear that a financial statement in the form referred to the "Practice Direction 5A" should be completed. One might assume that such a document is going to be the Form E. However, the relevant Practice Direction has not yet been published! No doubt this will be rectified in the next 7 weeks.

Other new developments to be aware of particularly for Schedule 1 applications - include the provision in the rules for interim orders to be sought and made (see r 9.15 FPR 2010). This may be of significant importance particularly where funding of the litigation is an issue (as in G v G [2009] EWHC 2080 and CF v KM [2010] EWHC 1754). Further, specific consideration is now directed in the rules as to whether the child should be separately represented on the application (see r 9.11 FPR 2010). Of note for Schedule 1 applications is that the general rule of "no order as to costs" would seem not to apply (as such applications are not actually included in the definition of "financial remedy proceedings" for cost purposes set out in r 28.3 (4) FPR 2010, whereas they are otherwise included in the general definition found at r 2.3 FPR 2010).  The court would appear to retain a discretion as to whether to order costs against a party, given that the exclusion of the application of r 44.3(1) CPR 1998 by r.283(2) FPR will not therefore apply to Schedule 1 applications.  Given the usual imbalance in finances that exists between parties to Schedule 1 applications and the fact that the resident parent is often said to be applying in a representative capacity - it is understandable that a discretion should be retained. Finally, it is also welcome to note that - as in the CPR - there are simplified rules providing for disclosure and inspection of documents held by third parties under Part 21 of the FPR 2010, which may have importance in Schedule 1 applications.

The new rules run to a voluminous 272 pages and all of us will need to get up to speed with them over the next 7 weeks, as whether dealing with Schedule 1 or any other type of family work - you are going to be directly affected.