Bulletin no 92
Jonathan Montgomery, BA, LLM
Professor of law, University of Southampton
Butterworths Family and Child Law Bulletin provides an immediate updating service for the main text of Butterworths Family Law Service and Clarke Hall and Morrison on Children. The bulletin is published every month and sent to subscribers to those publications.
References to BFLS and CHM above each case are to the relevant paragraphs in Butterworths Family Law Service and Clarke Hall and Morrison on Children.
The Domestic Violence, Crime and Victims Act 2004 (commencement no 5) order 2005, SI 2005/3196
This order, which came into force on 5 December 2005, commences certain provisions of the Domestic Violence, Crime and Victims Act 2004 which are related to cohabitation.
The provisions commenced have the effect of amending the definition of cohabitants in the Family Law Act 1996 to include cohabiting same-sex couples, and make further consequential amendments. They also extend the definition of relative in that act to include first cousins.
The tax and civil partnership regulations 2005, SI 2005/3229
These regulations, which came into force on 5 December 2005, amend primary tax legislation to provide for civil partnerships. They provide the same or similar tax treatment for persons who are, have been or may in the future be civil partners of each other as is given to persons who are, have been or may in the future be married to each other.
These regulations also provide the same or similar tax treatment for the formation of a civil partnership as is given to marriage. For some legislation the tax consequences are determined in part by whether persons are not married to each other but are living together as husband or wife, whether persons are not married to each other or whether a person is not married.
These regulations provide that the same or similar tax consequences apply where persons are not civil partners of each other but are living together as if they were, where persons are not civil partners of each other or where a person is not a civil partner, as the case may be.
These regulations also make provision for the purpose of removing inequalities of treatment based on gender and, in the case of a parent, marital status. The provisions affected are s 11 (dispositions for maintenance of family) of the Inheritance Tax Act 1984 and ss 257A, 257BA, 257BB (married couple’s allowance) and 347B (qualifying maintenance payments) of the Income and Corporation Taxes Act 1988.
These regulations also make more generous provision in relation to the children that can be provided for under a marriage settlement. The provisions affected are s 22 (gifts in consideration of marriage) of the Inheritance Tax Act, ss 77 (charge on settlor with interest in settlement) and 169F (meaning of ‘interest in a settlement’) of, and para 2 of sch 5 (attribution of gains to settlors with interest in non-resident or dual resident settlements) to, the Taxation of Chargeable Gains Act 1992, and s 625 of the Income Tax (Trading and Other Income) Act 2005.
The tax and civil partnership (no 2) regulations 2005, SI 2005/3230
These regulations, which came into force on 5 December 2005, amend secondary tax legislation to provide for civil partnerships and to ensure that civil partners are treated in the same way as spouses; surviving civil partners are treated in the same way as widows and widowers; transactions entered into in consideration of the formation of a civil partnership are treated in the same way as transactions entered into in consideration of marriage; the dissolution or annulment of a civil partnership is treated in the same way as a divorce or the annulment of a marriage; a former civil partner is treated in the same was as an ex-spouse; and civil partnership status is treated equally with marital status.
Related to these regulations is the Civil Partnership Act 2004 (Relationships Arising Through Civil Partnership) Order 2005 which applies s 246 of the Civil Partnership Act 2004 (interpretation of statutory references to stepchildren etc) to the following secondary legislation amended by these regulations: SI 1990/2231, SI 1990/2232 and SI 2004/2543.
The family procedure (modification of enactments) order 2005, SI 2005/3275
This order, which came into effect on 30 December 2005, amends s 97(1)(a) of the Magistrates’ Courts Act 1980 so as to enable a justice of the peace at the hearing of an application under the Adoption and Children Act 2002 to issue a witness summons. It also amends s 97(2) to prevent a warrant being issued instead of a summons in the hearing of an application under the 2002 Act.
The Access to Justice Act 1999 (destination of appeals) (family proceedings) order 2005, SI 2005/3276
This order provides that, with effect from 30 December 2005, appeals against decisions made in proceedings relating to adoption, including the exercise of the inherent jurisdiction of the High Court with respect to minors, and in proceedings for the purpose of enforcing an order made in such proceedings, shall lie as follows—
(a) appeals from decisions made by a district judge of a county court will lie to a judge of that court (art 3)
(b) appeals from decisions made by—
(i) a district judge of the high court,
(ii) a district judge of the principal registry of the family division
(iii) a costs judge
(iv) any person appointed to act as a deputy for any person holding the offices referred to in sub-paras (i) to (iii) or to act as a temporary additional officer in any such officewill lie to a judge of the high court (art 2).
By virtue of art 4, any appeal in which the appeal notice was lodged before 30 December 2005, shall lie to the same court that it would have lain to before 30 December 2005.
The housing benefit and council tax benefit (miscellaneous amendments) (no 5) regulations 2005, SI 2005/3294
These regulations amended the housing benefit (general) regulations 1987, the council tax benefit (general) regulations 1992 and the housing benefit and council tax benefit
(Miscellaneous amendments) (no 3) regulations with effect from 30 December 2005.
Regulation 2 amends the housing benefit regulations by providing that children placed for adoption in accordance with the Adoption and Children Act 2002 shall not be considered to be a member of the claimant’s household for housing benefit purposes. It also updates the reference to the Scottish regulations.
Regulation 3 amends the council tax benefit regulations and mirrors the amendment made by reg 2.
Regulation 4 makes a minor amendment to the miscellaneous amendments (no 3) regulations to correct an erroneous reference in those regulations.
The independent review of determinations (adoption) regulations 2005, SI 2005/3332
These regulations, which came into force on 30 December 2005, are made under the Adoption and Children Act 2002. They apply to England only. They make provision for the review by an independent panel in two types of case. First, a determination made by an adoption agency under the adoption agencies regulations 2005 that it does not propose to approve a prospective adopter as suitable to adopt a child.
Such a determination is specified in reg 3 of these tegulations as a qualifying determination for the purposes of s 12(2) of the act. Secondly, determinations made by an adoption agency under the disclosure of adoption information (post-commencement adoptions) regulations 2005.
These determinations are specified in reg 15(1) of those regulations as qualifying determinations for the purposes of s 12(2) of the act.
Part 2 makes provision for the constitution and membership of panels, their functions and the payment of fees, meetings and record keeping of the panels which are appointed by the secretary of state to review qualifying determinations.
Part 3 makes provision for the procedure to be followed when a review of a qualifying determination by a panel constituted under part 2 is sought.
The civil partnership (jurisdiction and recognition of judgments) regulations 2005, SI 2005/3334
These regulations, which came into force on 5 December 2005, are to make corresponding provisions, as far as is possible in domestic law, for civil partnerships as to the jurisdiction and recognition elements of council regulation (EC) 2201/2003 for matrimonial matters as regards the law of England and Wales and Northern Ireland.
The regulations apply to all civil partnerships including overseas relationships entitled to be treated as a civil partnership, by virtue of the Civil Partnership Act 2004.
Regulation 3(2) allows for the recognition and non-recognition of judgments regarding relationships that were formed before the coming into force of these regulations and the 2004 Act.
Regulations 4 and 5 set out the criteria for accepting jurisdiction for dissolution, annulment or legal separation proceedings in respect of civil partners.
Regulations 7 and 8 set out the criteria for recognition and non-recognition of an order made in another Member States for the dissolution or annulment of a civil partnership or the legal separation of civil partners.
Regulations 9 and 10 prevent the court from reviewing the jurisdiction of the court of the member state that made the original judgment and also prevents a court from reviewing the substance of that judgment.
Regulation 11 ensures that a judgment is recognised notwithstanding that there might well have been a different outcome if the law of England and Wales or Northern Ireland had been applied to the facts of the case.
Regulation 12 allows the court to stay proceedings for recognition of a judgment when there is an appeal outstanding against that judgment.
The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005, SI 2005/3336
This order, which came into force on 5 December 2005, amends the Matrimonial and Family Proceedings Act 1984 and the Family Law Act 1986 and the Housing Act 1996.
The amendments to the provisions in the Matrimonial and Family Proceedings Act 1984 and the Family Law Act 1986 (‘the 1986 Act’) are to enable those provisions to apply equally to civil partnership proceedings in the same way that they apply to matrimonial proceedings.
The amendment to the Matrimonial and Family Proceedings Act 1984 is to ensure that transfer of family proceedings from a High Court can be made to a civil partnership proceedings county court.
Articles 5 to 7 for England and Wales and 11 to 14 for Northern Ireland allow the court to accept jurisdiction under the 1986 Act in a case where the question of making an order with respect to a child arises during the course of civil partnership proceedings.
Article 8 for England and Wales and art 15 for Northern Ireland prevents the court accepting jurisdiction under the 1986 act based on the habitual residence of a child where civil partnership proceedings are taking place in another part of the United Kingdom.
Article 9 for England and Wales and art 16 for Northern Ireland restricts the courts power to vary a part 1 (1986 Act) order where there are continuing civil partnership proceedings in another part of the United Kingdom.
Articles 10, 17 and 19 clarifies the interpretation of civil partnership proceedings for part 1 of the 1986 Act for England and Wales and Northern Ireland.
Article 18 provides an exception to the rule of law, which prevents removal of a ward of court from the jurisdiction, where there are ongoing civil partnership proceedings in another part of the United Kingdom.
The amendment to the Housing Act 1996 is to enable a deceased tenant’s civil partner to succeed to an introductory tenancy in the same way as a deceased tenant’s spouse.
All these amendments are consequential amendments to the Civil Partnership Act 2004.
The Local Authority Adoption Service (England) (Amendment) Regulations 2005, SI 2005/3339
These regulations amend the Local Authority Adoption Service (England) Regulations 2003 with effect from 30 December 2005.
The 2003 regulations make provision in relation to the adoption service provided by local authorities. These regulations amend the 2003 regulations to make provision about adoption support services provided by local authorities (defined in s 2(6) of the Adoption and Children Act 2002 and regulations made under s 2(6)).
The amendments made by these regulations impose additional obligations on a local authority in relation to the provision of adoption support services.
The regulations require in particular officers appointed to manage the local authority’s adoption service to have regard to the number and needs of those receiving adoption support services (reg 2(6)); require the written policy intended to safeguard children to include children receiving adoption support services from the local authority (reg 2(7)); require authorities to ensure that adoption support services they provide are appropriate to the needs of those receiving the services (reg 2(8)) and to have sufficient staff who are suitably qualified and competent to provide such services (reg 2(9)); require the local authority to keep records in relation to the adoption support services provided to any person (reg 2(8)) and new requirements are imposed in relation to the provision of copies of the authority’s statement of purpose and children’s guide (reg 2(3) and (4)).
The Voluntary Adoption Agencies (Amendment) Regulations 2005, SI 2005/3341
These regulations, which came into force on 30 December 2005, amend the voluntary adoption agencies and the adoption agencies (miscellaneous amendments) regulations 2003.
Regulation 2(4) inserts a new part 4A which will apply to a registered adoption society (agency) which may provide adoption support services.
Regulation 2(5) and (6) amends schs 1 and 3 to the regulations to impose additional obligations in relation to the agency’s statement of purpose and staff records where it may provide adoption support services.
The new part 4A modifies the regulations to reflect that the agency will be providing adoption support services. In particular an agency which provides adoption support services to children will need to produce a children’s guide (reg 24C); reg 24F requires the agency to ensure that adoption support services are appropriate having regard to the assessed needs of those receiving services and reg 24G requires the agency to maintain records about the provision of adoption support services.
A new definition of adoption support services is inserted by reg 2(2)(b).
Regulation 2(2)(a) and (3) make other minor amendments to the regulations consequential upon the coming into force of the Adoption and Children Act 2002.
The local authority (adoption) (miscellaneous provisions) regulations 2005, SI 2005/3390
These regulations, which came into force on 30 December 2005, make provision for when people wish to adopt a child who is not placed for adoption with them by an adoption agency, and enable local authorities to charge for services provided in connection with adoptions with a foreign element and to use people who are not their employees in the exercise of their functions.
These regulations apply to England only and come into force on 30 December 2005.
Regulation 3 prescribes, for the purposes of s 44 of the Adoption and Children Act 2002, the appropriate local authority where the proposed adopters are living overseas and wish to give notice of intention to apply for an adoption order. In four cases it prescribes the local authority to which proposed adopters have to give notice of intention to adopt and which has other functions under s 44 of the act.
Regulation 4 requires the local authority, for the proposes of the investigation which it is required to arrange under s 44(5) of the act, to take steps to obtain enhanced criminal record certificates in respect of both the proposed adopters and other members of their household who are aged 18 or over.
Regulation 5 prescribes the facilities for which a local authority may charge, and the level of the fee, where the facilities are provided in connection with the adoption of a child brought into the United Kingdom for the purpose of adoption, or in connection with an adoption under the Hague convention, an overseas adoption or an adoption effected under the law of a country outside the British islands.
Regulation 6 allows local authorities to provide any of the requisite facilities for the purpose of maintaining an adoption service through an independent social worker who has the prescribed qualifications and experience.
The Care Standards Act 2000 (commencement no 9 (England) and transitional and savings provisions) (amendment) order 2005, SI 2005/3397
This order amends the Care Standards Act 2000 (commencement no 9 (England) and transitional and savings provisions) order 2001 to make transitional provision in relation to the registration of adoption support agencies.
Article 2(2) amends para 15 of the no 9 order to make transitional provision in relation to the registration of persons carrying on or managing adoption support agencies before 30 December 2005 and persons managing existing agencies which wish to become adoption support agencies from 30 December 2005.
Where such a person makes an application for registration under part 2 of the Care Standards Act 2000 before 30 December 2005, the provisions in para 15(4)–(7) of the no 9 Order will apply.
Article 2(3) makes transitional provision in relation to agencies approved under the Adoption Act 1976 to provide counselling services under s 51 of that act and appropriate voluntary organisations which wish to become adoption support agencies (new para 15A). Where such agencies complete the transfer of registration form they are to be treated with effect from 30 December 2005 as having been granted registration in respect of an adoption support agency.
Article 2(3) also makes transitional provision in relation to appropriate voluntary organisations which wish to provide adoption support services to children only or adults only and in relation to such organisations which do not intend to provide adoption support services from 30 December 2005 (new para 15B).
The family proceedings fees (amendment no 2) order 2005, SI 2005/3443
This order amended the family proceedings fees order 2004 with effect from 10 January 2006.
The table below sets out where fees have been increased or new fees introduced.
Fees 1.2, 1.4, 4.1, 4.2, 6.1 and 6.3 have been extended to include applications for the dissolution or annulment of a civil partnership or for the legal separation of civil partners under the Civil Partnership Act 2004.
Article 3(2)(b)(i) is also amended as a consequence of the implementation of the 2004 act.
Fee 2.1(a) and (b) has been extended to include applications under s 4A (acquisition of parental responsibility by step-parent) of the Children Act 1989 and new fee 2.1(c) has been inserted setting out the fee for an application under the following sections of the Children Act:
(a) section 14A and 14D (making, variation and discharge of a special guardianship order)
(b) section 14C (permission to cause child to be known by a new surname or remove him from the United Kingdom while a special guardianship order is in force).
Fee 3 has been amended to provide for applications under the Adoption and Children Act 2002 although the fee has not been increased. The family proceedings fees order 2004 will continue to apply, as if this order had not been made, to applications under ss 20, 21, 27 and 29 of the Adoption Act 1976.
Figures below list new fee, followed by old fee.
Fees to be taken in the High Court and in the county courts
1.1 Filing originating proceedings £200 £130
1.2 Presenting any petition £300 £210
1.4 Amending a petition £80 £50
1.5 Filing an answer to a petition or a cross-petition £200 £150
2 Proceedings under the Children Act 1989
On filing an application or requesting permission—
2.1 Parental responsibility, guardians, section 8 orders, special guardianship orders etc
(a) s 4(1)(c) or (3), 4A(1)(b) or (3), 5(1), 10(1) or (2) £175 £120 (in respect of applications under ss 4(1)(c) or (3), 5(1) and 10(1) or (2))
(b) s 6(7) or 13(1) £175 £120
(c) s 14A(3) or (6)(a), 14C(3) or 14D(1) £140 –
2.2 Financial provision for children
(a) para 1(1), 2(1), 6(5) or 14(1) of Sch 1 £175 £120
(b) para 1(4), 2(5), 5(6), 6(7), 6(8), 8(2), 10(2) or 11 of Sch 1 £175 £120
(a) on commencing an appeal under section 94 of the Children Act 1989 relating to provisions to which the following fees apply—
(i) fees 2.1(a) or (b) or 2.2 £175 £120
(ia) fee 2.1(c) £140 –
3 Adoption and wardship applications
3.1 On filing an application or requesting permission under part 1 of the Adoption and Children Act 2002 £140 £140 (for equivalent application under Adoption Act 1976)
3.2 Applying for the exercise of High Court jurisdiction to children £140 £140
4 Applications in proceedings
4.1 Application for an order without notice or with consent £40 £30
4.2 Request for directions for trial £40 £30
5 Appeal from a district judge
5.1 Appeal from a district judge to a judge £100 £80
6.1 Search in the central index of decrees absolute or of final orders at principal registry £25 £20
6.2 Search in the central index of parental responsibility agreements at principal registry £25 £20
6.3 Search in the index of decrees absolute or of final orders at any designated county court £10 £5
8 Determination of costs
8.1 Request for detailed assessment where party is legally aided or otherwise funded £140 £100
8.3 Request for default costs certificate to be issued £60 £40
9 Registration of maintenance orders
9.1 Application to register maintenance order £35 £30
9.2 Application to send maintenance order abroad for reciprocal enforcement £35 £30
Fees to be taken in the county courts only
11 Enforcement in the county courts
11.1(a) Enforcement by issue of warrant of execution up to £125 £35 £30
11.1(b) Enforcement by issue of warrant of execution over £125 £55 £50
11.2 Further attempt at execution of warrant £25 £20
11.3 Application for oral examination £45 £40
11.4 Application for garnishee order, charging order, third party debt order or appointment of receiver £55 £50
11.5 Application for a judgment summons £95 £90
11.6 Issue of warrant of possession or delivery £95 £90
11.7 Application for attachment of earnings order £65 £60
The magistrates’ courts fees order 2005, SI 2005 no 3444
This order replaced ss 137 and 138 of, and sch 6 to, the Magistrates’ Courts Act 1980 with effect from 10 January 2006 and specifies the fees payable in magistrates’ courts.
Some of the fees have increased and some new fees have been introduced.
The table below sets out the fees and shows new fee followed by old fee.
1.1 On a justice of the peace, to view deserted premises, a highway, bridge or nuisance £44 £44
2 Case for the opinion of the high court
2.1 Application to state a case for the opinion of the high court £382 £382
2.2 Request for certificate of refusal to state a case £8 £8
3.1 Request for certificate where no other fee specified £25 £8
4 Register of fines
4.1 Request for certificate of satisfaction £15
5 Council tax and rates
5.1 Application for a liability order £3 70p
5.2 Complaint (or application) and summons £25 £10
5.3 Warrant of arrest £25 £10
5.4 Commitment order £40 £40
6 Copy documents
6.1(a) Copy of first page of a document £1.10 £1.10
6.1(b) Copy per page for subsequent pages 55p 55p
6.1(c) Each additional copy 10p 10p
7.1 For the duplicate of any document £5 £5
8 Proceedings under the Domestic Proceedings and Magistrates’ Courts Act 1978
8.1 Application for an order for financial provision £175 £30
9 Proceedings under the Family Law Act 1986
9.1 Application for a declaration of parentage £130 £30 (application previously made under s 27 of the Child Support Act 1991)
10 Proceedings under the Children Act 1989
10.1 On an application or request for permission
(a) s 4(1)(c) or (3) or 4A(1)(b) or (3) £175 £30 (in respect of applications under section 4(1)(c) or (3))
(b) s 5(1) or 6(7) £175 £30
(c) s 10(1) or (2) £175 £30
(d) s 13(1) £175 £30
(e) s 14A(3) or (6)(a), 14C(3) or 14D(1) £140
(f) s 31 £150 £50
(g) s 33(7) £150 £20
(h) s 34 £150 £20
(i) s 36 £150 £50
(j) s 43 £150 £50
(k) Pt XA £150 £50
(l) para 1(1), 2(1), 6(5) or 14(1) of Sch 1 £175 £30
(m) para 8(1) of Sch 8 £150 £50
10.2 Application to vary, extend or discharge an order where the order subject to the application relates to
(a) fees 10.1(a)–(d) and (l) £175 £20
(b) fees 10.1(f)–(j) £150 £20
11 Proceedings under the Human Fertilisation and Embryology Act 1990
11.1 Application under section 30 £175 £30
12 Proceedings under the Child Support Act 1991
12.1 Application for a liability order £40 70p
12.2 Appeal under section 20 £130 £30
12.3 Appeal against deduction from earnings order £80 £10
12.4 Complaint (or application), summons, warrant and commitment order £90
Complaint and summons £10
Commitment order £40
13 Proceedings under the Adoption and Children Act 2002
13.1 On an application or request for permission under part 1 of the act £140
£30 for equivalent application under Adoption Act 1976 save for applications under s 23 of that act for which the fee was £20
14 Proceedings under sch 6 to the Civil Partnership Act 2004
14.1 Application for an order for financial provision £175
15.1 Every licence, consent or authority not otherwise provided for £8 £8
15.2 Application for the revocation of a licence not otherwise provided for £30 £30
16.1 Attestation of constable £8 £8
16.2 Every oath, affirmation or solemn declaration not otherwise charged £8 £8
17 Other civil proceedings
17.1 Complaint (or application) £25 £3.50
17.2 Summons £25 £3.50
17.3 Warrant £25 £6.50
17.4 Order £25 £16.50
18 Warrant of entry
18.1 Application for a warrant of entry £3 £2.25
Regulation 7(1)(b) of the register of fines regulations 2003 (SI 2003/3184) is amended so as to refer to this order rather than sch 6 to the Magistrates’ Courts Act 1980 (art 6).
The Civil Proceedings Fees (Amendment) Order 2005, SI 2005/3445
This order, which came into effect on 10 January 2006, substituted a new schedule of fees payable in civil proceedings in the Civil Proceedings fees order 2004.
Changes in fees are as follows. The first figure is the new fee in pounds, the second figure the old fee.
1.5 Filing of proceedings in county court against party not named in originating proceedings 35 30
1.7(a) Application for permission to issue originating proceedings in county court 35 30
1.7(b) Application for order under part III of the Solicitors Act 1974 in county court 35 30
2.4(a) Filing appellant’s notice in county court (or respondent’s notice where respondent is appealing etc)—small claims track 100 80
2.4(b) Filing appellant’s notice in county court (or respondent’s notice where respondent is appealing etc)—other than small claims track 120 100
2.5 Application on notice where no fee specified—county court 65 60
2.6 Application by consent or without notice for judgment or order where no other fee specified—county court 35 30
2.7 Application for summons or order for witness to attend court etc—county court 35 30
2.8 Application to vary judgment or suspend enforcement—county court 35 30
5.1 Filing of request for detailed assessment in legal aid cases—county court 105 100
5.3 Request for issue of default costs certificate—county court 45 40
5.4 Appeal against decision in detailed assessment proceedings—county court 105 100
5.5 Application for approval of certificate of costs payable from Community Legal Service Fund—county court 35 30
5.6 Request or application to set aside default costs certificate—county court 65 60
7.1(a) Application for enforcement in county court—amount of warrant not exceeding £125 35 30
7.1(b) Application for enforcement in county court—amount of warrant exceeding £125 55 50
7.2 Request for further attempt at execution of warrant—county court 25 20
7.3 Application for order requiring judgment debtor to attend court etc—county court 45 40
7.4(a) Application for third party debt order—county court 55 50
7.4(b) Application for charging order—county court 55 50
7.5 Application for judgment summons—county court 95 90
7.6 Issue of warrant of possession or delivery—county court 95 90
7.7 Application for attachment of earnings order—county court 65 60
7.9 Application for recovery of tribunal award—county court 35 30
13.1 Request for certificate of satisfaction—county court 15 10
This order provides that for the purposes of calculating a fee (fee 1.1, 1.2 or 1.3) for commencing proceedings in the high court or county court to recover a specified sum of money, the amount claimed is to include any interest claimed.
An amendment is also made to the exemption provisions in the 2004 order, consequential on the a