Peter Glover looks at some of the difficulties arising from outdated and opaque family proceedings rules


Family proceedings are emotive. The evidence may re-open old wounds, revisiting the circumstances in which the relationship failed, and reflecting each party's perception of the other's behaviour and failings at that time.



Access to legal professional advice was often a calming factor, but the failure of eligibility thresholds for public funding to keep pace with the general increase in our wealth, allied with the significant expense of legal representation, means that there are ever more family litigants without the benefit of impartial and objective advice. While many cope admirably, some do not, particularly when orders are made that they have opposed and with which they have no inclination to comply. It is in this context that the outdated and opaque enforcement procedures provided by the Family Proceedings Rules 1991 (FPR) are seen in their worst light.



First, note their date. With some exceptions, the FPR are still read in the context of the old County Court Rules 1981 (CCR) and Rules of the Supreme Court 1965 (RSC), and the 'new code' provided by the Civil Procedure Rules of 1998 (CPR) is largely of no application (FPR 1.3(1)). Thus financial enforcement procedures are governed by the old rules.



In family proceedings, it is still possible to seek the oral examination of a debtor, or apply for a garnishee order or a charging order nisi. That is, if you can find any of the old forms and the court knows what to do with them. After April 1999, when the CPR were introduced, there was mass destruction by the courts of 'old' forms and work cards. Further, the last full annotated prints of the 1981 and 1965 rules are those in the green and white books for 1998. How many practitioners and courts still have those readily available?



If financial enforcement under the FPR is rather more than a nuisance, enforcement by committal is a positive embarrassment. This arises most commonly where there are allegations of breaches of injunction orders, or section 8 Children Act orders or undertakings. In spite of the reforms enacted by the new section 42A of the Family Law Act 1996 as inserted by the Domestic Violence, Crime and Victims Act 2004, there will still be cases where there is no arrest or subsequent prosecution following the alleged breach of a non-molestation order, or where the breach which is the subject of the arrest is just one of many or several since the order was made.



Committal proceedings are an essential ingredient of family process in the county court and, as they involve the liberty of the subject, it is particularly important, one would think, that they are both clear and straightforward, particularly for the angry and aggrieved litigant in person to whom they are addressed. If only...



As is well known, such applications require proof of the allegations to the criminal standard. How strange then, that the only form provided for use, N78, requires the respondent to the application 'to show cause why (he) should not be committed to prison'. This terminology not only reverses the true balance of proof but suggests a blatant breach of article 6 of the European Convention on Human Rights. Is it enough that the judge will get it right on the day? In most cases, probably, but there will be some where the judge does not get it right, such as in the unfortunate saga of Hammerton v Hammerton [2007] EWCA Civ 248, [2007] All ER(D) 393 (Mar) discussed by District Judge Margaret Langley in a recent Benchmarks (for the regrettable sequel, which involved the throwing of a number of eggs and the imposition of a second sentence of imprisonment, see Hammerton v Hammerton (No 2) [2007] EWCA Civ 465, unreported). Can it ever be acceptable that a litigant in person who has failed to comply with an order, and whether motivated by sheer bloody mindedness, outright despair or something in between, is given to believe that, unless they make a good showing on the day, they will be going to prison?



Whatever the status of N78 before implementation of the CPR, it is now just an outdated practice form which has never, in its title, accurately reflected the applicable law. It is hidden away in table 3 of the practice direction to CPR 4, the resting place for old county court forms in use before April 1999 and remaining in use thereafter. It is cast even further adrift by the president's PD of 16 March 2001. This adopts, for the purposes of the FPR, the modern CPR PD on committal applications, and even though the revised provisions of 'old' CCR order 29 and RSC order 52 scheduled to the CPR, and in respect of which the PD was made, differ from the unreconstructed text applicable in family proceedings. Thus the 'new' CCR order 29 refers to the issue of an application notice seeking the committal for contempt of court of the alleged contemnor, while the 'old' version refers to the proper officer issuing a 'notice warning (that person) that an application will be made for him to be committed'.



The PD sets out the modern procedure for a family committal and is worthy of close study. It is settled law that the allegations the respondent is to answer must be clearly and precisely set out in the application. The evidence served in support cannot be relied upon to correct failures so to do. The PD provides guidance as to how this should ideally be done, by giving the date and time, so far as possible of each incident, and suggests a form of words to warn the recipient of the need to attend the hearing and the possible consequences of failing to do so. It also sets out the requirements for the presentation and service of evidence, both in support of and in opposition to the application.



It is submitted that it is a necessary consequence of the failures of the N78 form, and the requirements of article 6 and the PD that practitioners henceforth make use of an application notice complying with the requirements of CPR part 23 and the PD. It seems likely that judicial patience with the continued use of an unrevised form N78* will soon run out.



It would be nice to think that a brand new FPR would soon rationalise the difficulties addressed by this article, but although the relevant rules committee has been working long and hard on the project, it has recently been announced that IT problems will delay implementation into 2010. Perhaps it is not too much to hope that there will be some overdue amendments to the 1991 rules in the meantime.



* To see the full application form, go to www.lawgazette.co.uk/documents/downloads/applicationform.pdf



District Judge Glover sits at Dartford County Court