The Family Procedure Rules 2010 are in force from 6 April 2011. These rules provide a new code of procedure for family proceedings in the High Court, county courts and magistrates' courts, and replace the following rules:
- Family Proceedings Rules 1991;
- Family Procedure (Adoption) Rules 2005; and, in so far as they relate to family proceedings:
- Family Proceedings Courts (Children Act 1989) Rules 1991;
- Family Proceedings (Matrimonial Proceedings etc) Rules 1991; and
- rules relating to the reciprocal enforcement of maintenance orders, in particular the Magistrates' Courts (Reciprocal Enforcement of Maintenance Orders) Rules 1974.
In relation to NHS practice, they emphasise the important issues of ensuring proceedings are heard in a child friendly timescale and pave the way for family courts to be opened up to the media. They re-brand some existing rules and adopt a similar structure to the Civil Procedure Rules 1998. They are accompanied by several detailed Practice Directions, issued by the President of the Family Division. They provide a timely reminder of the context within which NHS practitioners may provide evidence to the family courts.
The rules arrive at a time when a full review of family proceedings is underway. The family justice review is due in autumn 2011, with the possible outcome of major changes to the family justice system.
The rules also have an impact on the Mental Health Act 1983, specifically in relation to hospital orders and transfer directions under that Act.
The release of information relating to proceedings
Rule 27.11 relates to family proceedings held in private. Significantly, rule 27.11(2)(f) allows a duly accredited media representative to be present. This is subject to the court’s discretion (having made the decision itself or following an application by a party, witness, Cafcass officer or the child themselves).
The court can direct under rule 27.11(3) that the press shall not attend the proceedings or any part of them if it is necessary:
- in the interests of any child concerned in, or in connection with, the proceedings;
- for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
- for the orderly conduct of the proceedings; or because
- justice will otherwise be impeded or prejudiced.
Practice Directions relating to the press
Practice Direction 27C supplements rule 27.11. This Practice Direction is intended to provide guidance regarding:
- the handling of applications to exclude media representatives from the whole or part of a hearing; and
- the exercise of the court’s discretion to exclude media representatives whether upon the court’s own motion or any such application.
Obtaining information in relation to proceedings involving children
The provisions of the rules permitting the attendance of media representatives do not entitle a media representative to receive or peruse court documents referred to in the course of evidence, submissions or decisions of the court (in particular written reasons) without the permission of the court or otherwise (see Part 12, Chapter 7 of the Family Proceedings Rules 2010 and Practice Direction 12G).
Rules 12.73-12.75 deal with permitted communication in relation to proceedings relating to children. Salient points for professionals working within the NHS include:
- (Rule 12.73) General information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated to a professional acting in furtherance of the protection of children. This will include health professionals involved in child protection.
- (Rule 12.75) Communication by a party, or the legal representative of a party, on that party’s instructions, may communicate information relating to the proceedings to any person where necessary to enable that party:
- by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings. This allows a party to communicate with a health care professional or a person or body providing counselling services for children or families any information relating to the proceedings to enable the party or any child of the party to obtain health care or counselling;
- to engage in mediation or other forms of alternative dispute resolution;
- to make and pursue a complaint against a person or body concerned in the proceedings. This may include an NHS body or professional; and
- to make and pursue a complaint regarding the law, policy or procedure relating to children proceedings.
- Where information is communicated to any person in accordance with (a), no further communication by that person is permitted.
- When information relating to the proceedings is communicated to any person in accordance with (b),(c) or (d), the recipient may communicate that information to a further recipient, provided that the party who initially communicated the information consents to that further communication and the further communication is made only for the purpose or purposes for which the party made the initial communication. The information may be successively communicated to and by further recipients on as many occasions as may be necessary to fulfill the purpose for which the information was initially communicated, provided that on each such occasion the same conditions are met.
Practice Direction 12G has a helpful table which sets out who can communicate what and to whom (this is in line with the old rule 10.28).
Urgent applications to the court
Practice Direction 12E relates to urgent court business for children’s matters generally (which could include urgent applications about medical treatment). A separate system applies to Court of Protection proceedings for adults who lack capacity.
The current system remains in place in relation to notifying the court. The Practice Direction emphasises that this facility should only be used where an application within court hours is not possible, owing to the urgency of a matter and that, where the court suspects abuse of the out of hours system, a representative of the applicant may be called to court to provide an explanation.
Mental Health Act 1983 cross over
Two inclusions in the new rules allow for appropriate information to be passed to mental health trusts in relation to patients.
Rule 11.17 states that where the court makes a hospital order under the MHA 1983, the court officer must sent to the hospital any information which will be of assistance in dealing with the patient; and inform the persons directed by the court to be informed about when the patient is being transferred to hospital. Where the court makes a guardianship order under the MHA 1983, the court officer must send any information which will be of assistance in dealing with the patient to the patient’s guardian and, where the guardian is a person other than the local services authority, the local services authority.
Rule 11.18 states that where a transfer direction given by the Secretary of State under section 48 of the MHA 1983 is in force in respect of a person remanded in custody by the court, the court officer must notify the governor of the prison where they were remanded, the hospital where they are detained and of any committal hearing that they are required to attend.
It is important to ensure that requests for information are considered in relation to their relevance and lawfulness and where disclosure is appropriate, it is made in a timely manner. Where you have concerns about whether or not particular information is relevant/should be disclosed, you should seek the advice of your manager or obtain legal advice.
Practice Directions accompanying the rules outline the importance of involving children where appropriate in the decision making process and this will apply also to consenting to the disclosure of information.
Practitioners need to be aware that the disclosure of information into or actual attendance at court, might result in information being revealed in the press. The press are seeking access to hearings and, in some cases, being granted access by the courts. If you have legitimate concerns (for a child, yourself or others) about the press seeing documents or hearing your evidence, ensure you flag this up as soon as possible so that your managers can assist and/or seek legal advice on your behalf.
As always with regard to information, it is important to ensure that you keep clear contemporaneous records. Remember that documents handed over to inter-agency partners’ pre proceedings (e.g. under the Public Law Outline) may be disclosed into proceedings and you should ensure they are accurate and professionally presented.
The Mills & Reeve children’s law team have experience of dealing with high profile children’s cases and are happy to offer assistance with regard to your input into a case and/or your interface with the press.