Citation and commencement

1.–(1) This Order may be cited as the Family Proceedings Fees Order 2008 and shall come into force on 1st May 2008.

(2) In this Order–

(a) "LSC" means the Legal Services Commission established under section 1 of the Access to Justice Act 1999(2);

(b) expressions also used in the Family Proceedings Rules 1991(3) have the same meaning as in those Rules.

Fees payable

2. The fees set out in column 2 of Schedule 1 are payable in family proceedings in the High Court and in county courts in respect of the items described in column 1 in accordance with and subject to the directions specified in that column.

3. Where by any convention entered into by Her Majesty with any foreign power it is provided that no fee is required to be paid in respect of any proceedings, the fees specified in this Order are not payable in respect of those proceedings.

Remissions and part remissions

4. Schedule 2 applies for the purpose of ascertaining whether a party is entitled to a remission or part remission of a fee prescribed by this Order.

Revocations

5. The instruments listed in column 1 of the table in Schedule 3 (which have the references listed in column 2) are revoked.

Transitional provision

6. Fees 2.2(b) and (c) are not payable in respect of an issues resolution hearing, pre-hearing review or final hearing which has been listed on any day between 1st May 2008 and 14th May 2008 inclusive.

Article 2

SCHEDULE 1 Fees to be taken

Article 4

SCHEDULE 2 Remissions and part remissions

Interpretation

1.–(1) In this Schedule–

"child" means a child or young person in respect of whom a party is entitled to receive child benefit in accordance with section 141, and regulations made under section 142, of the Social Security Contributions and Benefits Act 1992(17);

"child care costs" has the meaning given in the Criminal Defence Service (Financial Eligibility) Regulations 2006(18);

"couple" has the meaning given in section 3(5A) of the Tax Credits Act 2002(19);

"disposable monthly income" has the meaning given in paragraph 5;

"excluded benefits" means–

"the Funding Code" means the code approved under section 9 of the Access to Justice Act 1999;

"gross annual income" means total annual income, for the 12 months preceding the application for remission or part remission, from all sources other than receipt of any of the excluded benefits;

"gross monthly income" means total monthly income, for the month in which the application for remission or part remission is made, from all sources other than receipt of any of the excluded benefits;

"the Independent Living Funds" has the meaning given in the Criminal Defence Service (Financial Eligibility) Regulations 2006;

"partner" means a person with whom the party lives as a couple and includes a person with whom the party is not currently living but from whom the party is not living separate and apart;

"party" means the party who would, but for this Schedule, be liable to pay the fee required under this Order;

"restraint order" means–

(2) Paragraphs 2, 3 and 4–

(a) do not apply to a party who is in receipt of funding provided by the LSC for the purposes of the proceedings for which a certificate has been issued under the Funding Code; and

(b) are subject to the provisions of paragraph 10 (vexatious litigants).

Full remission of fees - qualifying benefits

2.–(1) No fee is payable under this Order if, at the time when a fee would otherwise be payable, the party–

(a) is in receipt of a qualifying benefit; or

(b) is not a beneficiary of a trust fund in court of a value of more than £50,000 and is–

(i) under the age of eighteen; or

(ii) a person for whose financial relief an order under paragraph 2 of Schedule 1 to the Children Act 1989 is in force or being applied for.

(2) The following are qualifying benefits for the purposes of sub-paragraph (1)(a)–

(a) income support under the Social Security Contributions and Benefits Act 1992;

(b) working tax credit, provided that no child tax credit is being paid to the party;

(c) income-based jobseeker´s allowance under the Jobseekers Act 1995; and

(d) guarantee credit under the State Pension Credit Act 2002(27).

Full remission of fees - gross annual income

3.–(1) No fee is payable under this Order if, at the time when the fee would otherwise be payable, the party has the number of children specified in column 1 of the following table and–

(a) if the party is single, the gross annual income of the party does not exceed the amount set out in the appropriate row of column 2; or

(b) if the party is one of a couple, the gross annual income of the couple does not exceed the amount set out in the appropriate row of column 3.

(2) If the party paying the fee has more than 4 children then the relevant amount of gross annual income is the amount specified in the table for 4 children plus the sum of £2,735 for each additional child.

Full and part remission of fees - disposable monthly income

4.–(1) No fee is payable under this Order if, at the time when the fee would otherwise be payable, the disposable monthly income of the party is £50 or less.

(2) The maximum amount of fee payable is–

(a) if the disposable monthly income of the party is more than £50 but does not exceed £210, an amount equal to one-quarter of every £10 of the party´s disposable monthly income up to a maximum of £50; and

(b) if the disposable monthly income is more than £210, an amount equal to £50 plus one-half of every £10 over £200 of the party´s disposable monthly income.

(3) Where the fee that would otherwise be payable under this Order is greater than the maximum fee which a party is required to pay as calculated in sub-paragraph (2), the fee will be remitted to the amount payable under that sub-paragraph.

Disposable monthly income

5.–(1) A party´s disposable monthly income is the gross monthly income of the party for the month in which the fee becomes payable ("the period") less the deductions referred to in sub-paragraphs (2) and (3).

(2) There are to be deducted from the gross monthly income–

(a) income tax paid or payable in respect of the period;

(b) any contributions estimated to have been paid under Part 1 of the Social Security Contributions and Benefits Act 1992 in respect of the period;

(c) either–

(i) monthly rent or monthly payment in respect of a mortgage debt or hereditable security, payable in respect of the only or main dwelling of the party, less any housing benefit paid under the Social Security Contributions and Benefits Act 1992; or

(ii) the monthly cost of the living accommodation of the party;

(d) any child care costs paid or payable in respect of the period;

(e) if the party is making bona fide payments for the maintenance of a child who is not a member of the household of the party, the amount of such payments paid or payable in respect of the period; and

(f) any amount paid or payable by the party, in respect of the period, in pursuance of a court order.

(3) There will be deducted from the gross monthly income an amount representing the cost of living expenses in respect of the period being–

(a) £296; plus

(b) £228 for each child of the party; plus

(c) £150, if the party has a partner.

Resources of partners

6.–(1) For the purpose of determining whether a party is entitled to the remission or part remission of a fee in accordance with this Schedule, the income of a partner, if any, is to be included as income of the party.

(2) The receipt by a partner of a qualifying benefit does not entitle a party to remission of a fee.

Application for remission or part remission of fees

7.–(1) An application for remission or part remission of a fee must be made to the court officer at the time when the fee would otherwise be payable.

(2) Where a claim for full remission of fees is made, the party must provide documentary evidence of, as the case may be–

(a) entitlement to a qualifying benefit; or

(b) gross annual income and, if applicable, the children included for the purposes of paragraph 3.

(3) Where a claim for full or part remission of fees under paragraph 4 is made, the party must provide documentary evidence of–

(a) such of the party´s gross monthly income as is derived from–

(i) employment;

(ii) rental or other income received from persons living with the party by reason of their residence in the party´s home;

(iii) a pension; or

(iv) a state benefit, not being an excluded benefit; and

(b) any expenditure being deducted from the gross monthly income in accordance with paragraph 5(2).

Remission in exceptional circumstances

8. Where it appears to the Lord Chancellor that the payment of any fee prescribed by this Order would, owing to the exceptional circumstances of the particular case, involve undue financial hardship, the Lord Chancellor may reduce or remit the fee in that case.

Refunds

9.–(1) Subject to sub-paragraph (3), where a party has not provided the documentary evidence required by paragraph 7 and a fee has been paid at a time when, under paragraphs 2, 3 or 4, it was not payable, the fee will be refunded if documentary evidence relating to the time when the fee became payable is provided at a later date.

(2) Subject to sub-paragraph (3), where a fee has been paid at a time where the Lord Chancellor, if all the circumstances had been known, would have reduced or remitted the fee under paragraph 8, the fee or the amount by which the fee would have been reduced, as the case may be, will be refunded.

(3) No refund will be made under this paragraph unless the party who paid the fee applies within 6 months of paying the fee.

(4) The Lord Chancellor may extend the period of 6 months mentioned in sub-paragraph (3) if the Lord Chancellor considers that there is a good reason for an application being made after the end of the period of 6 months.

Vexatious Litigants

10.–(1) This paragraph applies where–

(a) a restraint order is in force against a party; and

(b) the party makes an application for permission to–

(i) issue proceedings or take a step in proceedings as required by the restraint order;

(ii) apply for amendment or discharge of the order; or

(iii) appeal the order.

(2) The fee prescribed for the application by Schedule 1 is payable in full.

(3) If the court grants the permission requested the applicant will be refunded the difference between–

(a) the fee paid; and

(b) the fee that would have been payable if this Schedule had been applied without reference to this paragraph.

Article 5

SCHEDULE 3 Revocations

EXPLANATORY NOTE

(This note is not part of the Order)

This Order revokes and consolidates the Family Proceedings Fees Order 2004 (S.I. 2004/3114) as amended. It specifies the fees payable for family proceedings in the High Court and in county courts. In addition to minor and drafting amendments, this Order also makes the following changes of substance–

In Schedule 1, an incremental fee is introduced in relation to proceedings for a care or supervision order under section 31 of the Children Act 1989 (fee 2.2). The first fee (£2,225) is paid on an application for such an order. The second fee (£700) is payable if an issues resolution hearing or pre-hearing review is listed, at least 14 days before the day on which the hearing is listed, and the third fee (£1,900) is payable if a final hearing is listed, at least 14 days before the day on which that hearing is listed. Provision is made for a refund to be made if a final order is made at a case management conference or if a hearing which has been listed does not take place. The purpose of a case management conference and issues resolution hearing is set out in the Practice Direction entitled "Guide to Case Management in Public Law Proceedings" given by the President of the Family Division of the High Court in April 2008 and the purpose of a pre-hearing review is set out in the Protocol entitled "Judicial Case Management in Public Law Children Act Cases" issued by the President in June 2003. No fee is payable in relation to any issues resolution hearing, pre-hearing review or final hearing listed between 1st May 2008 and 14th May 2008 inclusive (article 6).

The fee for an application for a placement order under section 22 of the Adoption and Children Act 2002 is increased from £140 to £400 (fee 3.2). The notes to fee 3 are updated so as to make it clear that only one fee is payable in relation to an application under more than one provision of the 2002 Act or in relation to an application in respect of two or more children.

In Schedule 2, the definition of "child" in paragraph 1(1) is amended so as to include any qualifying young person in respect of whom child benefit is paid to a party under regulations made under section 142 of the Social Security Contributions and Benefits Act 1992. In paragraph 1(2), it is clarified that paragraphs 2, 3 and 4 of Schedule 2 (full and part remission of fees) only apply to a party who is not in receipt of funding provided by the LSC for the purposes of the proceedings and for which a certificate has been issued under the Funding Code.

Paragraph 3, which sets out the gross annual income, having regard to the number of children that the party has, for the purposes of determining whether a fee is payable by a party under the Order, is amended so as to increase the amount allowable for each child from £2470 to £2735.

Paragraph 5(3), which makes provision for the calculation of a party´s disposable monthly income, is amended so as to increase the amounts that may be deducted from a party´s gross monthly income for living expenses. The amount that a party may deduct rises from £279 to £296, the amount for each child of the party rises from £198 to £228 and the amount that may be deducted if the party has a partner rises from £142 to £150.

An impact assessment of the effect that this instrument will have on the costs of business is available on the Ministry of Justice´s website at www.justice.gov.uk/publications/cp3207.htm .