PSL Essential Update - FPR amendments for set-aside applications and declarations of parentage

In a nutshell:

1. Set aside of financial remedy orders; and
2. Declarations of parentage.

When:

The Statutes and Statutory Instruments:

Amended Practice Direction 9A – Applications for a Financial Remedy

Summary of the changes:

Set aside of financial remedy orders

• There is a new rule 9.9A that outlines the procedure for application to set aside financial remedy orders.
  
  The Family Procedure Rule Committee had been working on this new procedure when the cases of Sharland and Gohil were heard and the committee's meeting minutes were endorsed by the Supreme Court. In Sharland v Sharland [2015] 2 FLR 1367, Lady Hale stated that, in her view, there was jurisdiction to entertain an application to set aside for material non-disclosure within the matrimonial proceedings (rather than issuing a fresh action) as the divorce court retains jurisdiction over a marriage even after it has been dissolved. This was reinforced by the dicta in Gohil v Gohil [2015] 2 FLR 1289, in which Lord Wilson stated: 'There is no need to provide that the jurisdiction of the High Court to set aside its financial orders be invoked by a fresh action, rather than by application within those proceedings'. Lord Wilson went on to say: 'It seems highly convenient that an application to set aside a financial order of the Family Court of the ground of non-disclosure should, again, be made to that court and indeed at the level at which the order was made; and this convenient solution seems already to have been achieved by the provision of the Matrimonial and Family Proceedings Act 1984 recently inserted as s 31F(6), under which the Family Court has power to rescind any order made by it'.
• The procedure is for applications to set aside a financial remedy order where no error of the court is alleged (as in Sharland and Gohil).
• As suggested by Lady Hale in Sharland and Lord Wilson in Gohil, the application must be made within the proceedings in which the financial remedy order was made.
• The Part 18 procedure must be used. This means the application must be made on Form D11 and the procedure as set out in Part 18 should be followed (subject to the modifications in r 9.9A).
• Where the court decides to set aside a financial remedy order, it shall give directions for the rehearing of the financial remedy proceedings or make such other orders as may be appropriate to dispose of the application.
• Costs - applications under the new rule 9.9A are not financial remedy proceedings for the purpose of rule 28. This means that the general rule that the court will not make an order for costs does not apply.
• Practice Direction 9A has been amended and it provides several new paragraphs about the new set aside procedure. In summary, the Practice Direction states that:
  • the Part 18 procedure will still apply to applications that were made before 3 October 2016, subject to any directions that the court might make for the purpose of ensuring the proceedings are dealt with fairly.
  • if the financial remedy order was made before 22 April 2014, by any court, an application to set it aside under rule 9.9A is to be made to the family court.
  • if the financial remedy order was made on or after 22 April 2014, an application to set it aside under rule 9.9A is to be made to the court that made the order.
  • an application under rule 9.9A is to be dealt with by the same level of judge that dealt with the original application and, where reasonable possible, the application will be dealt with by the same judge that dealt with the original application.
  • an application to set aside a financial remedy order should only be made where no error of the court is alleged. If an error of the court is alleged, an application for permission to appeal under Part 30 should be considered. The grounds on which a financial remedy order may be set aside are and will remain a matter for decisions by judges. The grounds include (i) fraud; (ii) material non-disclosure; (iii) certain limited types of mistake; (iv) a subsequent event, unforeseen and unforeseeable at the time the order was made, which invalidates the basis on which the order was made.
  • an application may be made to set aside all or only part of a financial remedy order, including a financial remedy order that has been made by consent.
  • the starting point is that the order which one party is seeking to have set aside was properly made. A mere allegation that it was obtained by, eg, non-disclosure, is not sufficient for the court to set aside the order. Only once the ground for setting aside the order has been established (for admitted) can the court set aside the order and rehear the original application for a financial remedy. The court has a full range of case management powers and considerable discretion as to how to determine an application to set aside a financial remedy order, including (where appropriate) the power to strike out or summarily dispose of an application to set aside. If and when a ground for setting aside has been established, the court may decide to set aside the whole or part of the order there and then, or may delay doing so, especially if there are third party claims to the parties' assets. Ordinarily, once the court has decided to set aside a financial remedy order, the court would give directions for a full rehearing to re-determine the original application. However, if the court is satisfied that it has sufficient information to do so, it may proceed to re-determine the original application at the same time as setting aside the financial remedy order.
• Also see: The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016 (SI 2016/891), which provides that the route of appeal from certain decisions or orders of Circuit judges and Recorders sitting in the Family Court will be to the High Court, rather than the Court of Appeal.

Destinations of parentage

• A child will not be automatically a party to proceedings for a declaration of parentage under s 55A of the Family Law Act 1986 (Rule 3 amending r 8.30, FPR 2010).
• A child must have a children's guardian where:
  • the court has made the child a party in accordance with r 16.2; and
  • the child is the person whose parentage is in dispute in those proceedings. (Rule 5 amending r 16.4, FPR 2010.)
• A child must have a litigation friend where the child is:
  • a party to proceedings under s 55A of the 1986 Act; but
  • not the person whose parentage is in dispute in those proceedings. (Rule 6 amending r 16.5, FPR 2010.)
• A child does not have to have a guardian or litigation friend in s 55A proceedings if the conditions set out in r 16.6(3), FPR 2010 are satisfied (the court gives permission or a solicitor considers that the child is able to give instructions and has accepted the instructions.