The Ministry of Justice has moved forward with two new amendments to the Family Procedure Rules (FPR), one of which allows for the Rules to be temporarily modified in the event of a public emergency. The second amendment clarifies a rule relating to serving parties in family law proceedings.
The Family Procedure Rules, which set out the procedures used in family courts in England and Wales, also outline pre action protocols and include the forms used for family court hearings.
The decision to amend the FPR took place without a formal consultation, which could raise concerns about the intent behind an amendment allowing relaxations of the Rules where an incident is deemed to be a public emergency.
The amendments, announced on Wednesday, follow a landmark case which found that the government had a duty to consult the Children’s Commissioner and other bodies representing the rights of children in care where amending rules and regulations could significantly impact children’s welfare.
The case, which was brought by charity Article 39 last year, challenged the government’s decision to relax core safeguards for children in care during the Covid-19 pandemic without holding a formal consultation with the Children’s Commissioner and other organisations and departments working inside the children’s care system.
Handing down its judgment, the Court of Appeal found that the government had been wrong not to launch an official consultation before introducing the easements, and re-iterated the circumstances in which a consultation was necessary. These include, where there is a statutory duty; where a promise to consult has been made; where there is an established practice of consultation; and where it would be conspicuously unfair not to have a consultation.
The judges in the Court of Appeal also set out the key reasons for a consultation, namely to improve the quality of decision making; that those affected may have a right to be consulted by regulatory change and feel injustice if they are not; and that the consultation is part of a wider democratic process.
The explanatory memorandum for the new amendments said that a consultation about the amendments was unnecessary, and that the new amendment relating to public emergencies in particular — rule 36.3 — was an “enabling provision” allowing for the temporary modification of rules (to be made by a Practice Direction), and was not a provision that would “of itself have immediate or direct effect.”
The memorandum said that while an official consultation had not been carried out, the FPR Committee had “liaised” with the Civil Procedure Rule Committee regarding new rule 36.3, and that a mirroring provision would be inserted in the Civil Procedure Rules 1998.
No direction is offered in the memorandum as to what might constitute a public emergency for rule 36.3 to be enabled, which could also spark concerns from child welfare charities and stakeholders that the new rule could be misused.
The explanatory note included an impact assessment for the amendments which simply said,”There is no, or no significant, impact on business, charities or voluntary bodies. There is no, or no significant, impact on the public sector. An Impact Assessment has not been prepared for these Rules because no, or no significant, impact on the private, public or voluntary sectors is foreseen.”