S.I. No. 97/1990 - Rules of Superior Courts (No. 1), 1990.

1. I, AB, a solicitor of (firm of solicitors) situate at (insert address) do certify that I have discussed with the above-named XY the possibility of his or her reconciliation with ZY and that I have given him/her the names and addresses of the following persons who are qualified to help effect a reconciliation between spouses who have become estranged:—

[Set out here the names and addresses of such qualified persons.]

2. I also hereby certify that I have discussed with the above-named XY the possibility of engaging in mediation to help effect a separation on an agreed basis with ZY and that I have given to him/her the names and addresses of the following persons and organisations qualified to provide such a mediation service:—

[Set out here the names and addresses of such qualified persons and organisations.]

3. I further certify that I discussed with the above-named XY the possibility of negotiating and concluding a Separation Deed or written Separation Agreement with ZY.

4. I further certify that I believe that no application has been made by the above-named XY for a decree of judicial separation (or in the case of a solicitor acting for a respondent) I hereby certify that having received instructions from the above-named respondent ZY on the ........ day of ................ 19 ..that I have discussed the above mentioned matters with ZY as soon as possible thereafter.

Dated the

............................................................ .......

day of

............................................................ ..............

Signed

(Name and address of Solicitor)

EXPLANATORY NOTE.

The Statutory Instrument amends the Rules of the Superior Courts by establishing a procedure for hearing claims under the

Married Women's Status Act, 1957

, the

Guardianship of Infants Act, 1964

, the

Adoption Act, 1974

, the

Family Law (Maintenance of Spouses and Children Act, 1976

, the

Family Home Protection Act, 1976

, the

Family Law Act, 1981

, the

Family Law (Protection of Spouses and Children) Act, 1981

, the

Adoption Act, 1988

and the

Judicial Separation and Family Law Reform Act, 1989

and related matters.

5. (1) Where any action or proceeding is pending in the High Court which might have been commenced in the Circuit Court or District Court any party to such action or proceeding may apply to the High Court that the action be remitted or transferred to the Circuit Court or the District Court (as the case may be) and if the High Court should, in the exercise of its discretion, consider such an Order to be in the interests of justice it shall remit or transfer such action or proceeding to the Circuit Court or the District Court (as the case may be) to be prosecuted before the Judge to such Circuit or (as the case may require) the Justice assigned to such District as may appear to the Court suitable and convenient, upon such terms and subject to such conditions as to costs or otherwise as may appear just.

(2) An application under this rule to remit or transfer an action or proceeding may be made at any time after an appearance has been entered.

6. The provisions of Order 49, Rules 1, 2, 3 and 6, shall apply to any proceedings commenced under Rule 2 above.

7. (1) In any proceedings pursuant to

Section 3

of the

Adoption Act, 1974

and upon the service of a summons on An Bord Uchtála, the Board shall take the following steps:—

(

a

) It shall cause the person who has agreed to the placing of the child, the subject matter of the application for adoption, to be informed of the following matters:—

(i) of the fact of the institution of the proceedings under

Section 3

of the

Adoption Act, 1974

without revealing to such person the name or identity of the Applicants;

(ii) of the fact that such person is entitled to be heard and represented upon the hearing of the summons.

(

b

) It shall ascertain from such person the following information:—

(i) Whether such person wishes to be heard and to be represented at the hearing of such summons.

(ii) Whether such person has available to him advice and is in a position from his own resources to be represented by solicitor or solicitor and counsel at the hearing of such summons.

(iii) The address at which such person may be informed of the proceedings and in particular of the date of any hearng at which such person will be heard and represented.

(2) Upon the completion of the steps provided for in sub-rule (1) the Board shall apply by Motion on Notice to the Applicants to the Court for directions. Such application shall, in the first instance, be made on Affidavit and in the event that it has been possible to communicate with the person involved such Affidavits shall include an Affidavit by the Servant or Officer of the Board who has actually spoken to and had communication with such person. Such person shall not be identified in the body of the Affidavit but the name and address present and future of such person shall be set out in a sealed envelope exhibited in such Affidavit. Such exhibit shall be opened by the Judge only and unless by special direction of the Court the name, address and identity of such person shall not be revealed to any of the other parties in the suit.

(3) Upon the hearing of such motion for directions the Court may give such directions as it shall think fit for the hearing of the action and in particular may:—

(

a

) Provide, if necessary, for the representation of such person.

(

b

) Fix a date for the hearing in camera of the evidence and submissions on behalf of the applicants in the absence of such person but in the presence of solicitor or solicitor and counsel representing such person.

(

c

) Fix a separate date for the hearing in camera of the evidence and submissions by and on behalf of such person in the absence of the applicants but in the presence of solicitor or solicitor and counsel for the applicants.

(4) If it is satisfied upon the Affidavits supporting such motion or upon such further evidence, oral or otherwise, as may be adduced on behalf of the Board that it is not possible to ascertain the whereabouts of the person who has placed the child for adoption and that it is not possible to communicate with such person the Court may proceed to hear and determine the application without further notice to such person.

8. (1) In an application brought pursuant to Section 3 (1) (

a

) of the

Adoption Act, 1988

, the health board shall serve a copy of the summons on the applicants and shall verify by affidavit the reasons why it considers it proper to make the application.

(2) In any proceedings brought pursuant to Section 3 (1) (

b

) of the

Adoption Act, 1988

the applicants shall serve a copy of the summons on the relevant health board and thereupon the health board shall verify by affidavit its reasons for (as the case may be):—

(i) declining to apply to the Court, or

(ii) failing to apply to the Court and failing to serve the notice required by section 3 (1) (

b

) (i) of the Act.

Such Affidavit shall be sworn by the Chief Executive Officer or by a Deputy Chief Executive Officer of the Board.

(3) In an application brought under sub-rule (1) or (2) above, the provisions of rule 7 relating to the steps to be taken by an Bord Uchtala shall apply mutatis mutandis to a health Board in relation to the parents alleged to have failed in their duty to the child or children concerned.

9. Any respondent in family law proceedings may counter-claim in like manner as if he were an applicant and subject to the provisions of this Order.

10. The Master of the High Court or the Court may at any stage of the proceedings direct such service of notice of the proceedings on any person not already a party in such manner as the Court shall direct having regard to the nature and extent of the relief claimed and its effect if granted.

11. In any proceedings which have been transferred to the High Court pursuant to

Section 31

(3) of the

Judicial Separation and Family Law Reform Act, 1989

the applicant and the respondent shall each within fourteen days from the making of the Order or such further time as the Master may allow file in the Central Office an affidavit or supplemental affidavits and deliver amended pleadings as shall appear necessary to conform to the requirements of this Order as if the proceedings had commenced in the High Court, together with a certified copy of the Order transferring the same and the proceedings shall thereupon be listed for hearing.

12. An application pursuant to

Section 22

of the

Judicial Separation and Family Law Reform Act, 1989

shall be made to the Court by motion on notice to the party concerned and supported by an affidavit verifying the same and shall set out fully how, when and in what respect circumstances have changed or what new evidence exists as a result of which the Court should vary or discharge or otherwise modify in any respect an Order to which the Section applies.

13. (1) The Court may make an Order pursuant to Section 11 or Section 29 (2) (

a

) of the

Judicial Separation and Family Law Reform Act, 1989

on an application made to it ex parte in any case in which the urgency of the circumstances require the making of the Order.

(2) Any other application to the Court made pursuant to

Section 11

of the

Judicial Separation and Family Law Reform Act, 1989

shall be made by motion on notice grounded upon an affidavit setting forth particulars of the financial or other relief which has been claimed or granted as the case may be and where applicable particulars of such disposition (whether reviewable or not) or transfer or other dealing with any property done with the intention of defeating such claim for financial relief together with any documents or other exhibits which may support such claim.

(3) The Court may direct service of notice of such application on such other parties (if any) to such disposition, transfer or dealing as in the circumstances seem proper.

14. An application for the rescission of the grant of a decree of judicial separation shall be preceded by a notice of re-entry which shall have been given at least one month before the date of the application and shall be grounded on an affidavit sworn by each of the spouses seeking such rescission which shall specify the nature and extent of the reconciliation including whether they have resumed cohabiting as husband and wife and shall also specify such necessary ancillary Orders (if any) as they require the Court to make or to consider making in the circumstances.

15. In an application to Court pursuant to Section 6A or

Section 11

(4) of the

Guardianship of Infants Act, 1964

(as inserted by

Section 12

and

13

of the

Status of Children Act, 1987

, respectively) where an infant is in the care of prospective adoptive parents under the Adoption Acts, 1952 and 1988, the following procedure shall be followed

(1) Upon the service of a summons on An Bord Uchtála the Board shall take the following steps:—

(

a

) It shall cause the prospective adoptive parents to be informed of the following matters

(i) of the fact of the institution of the proceedings under Section 6A or

Section 11

(4) of the

Guardianship of Infants Act, 1964

without revealing to such parents the names or identity of the applicant or of the natural mother.

(ii) of the fact that such parents are entitled to be heard and represented upon the hearing of the summons.

(

b

) It shall ascertain from such parents the following information:—

(i) Whether they wish to be heard and to be represented at the hearing of such summons.

(ii) Whether they have available to them advice and are in a position from their own resources to be represented by solicitor or solicitor and counsel at the hearing of such summons.

(iii) The address at which they may be informed of the proceedings and in particular of the date of any hearing at which they will be heard and represented.

(2) Upon the completion of the steps provided for in sub-rule (1) the Board shall apply by Motion on Notice to the father to the Court for directions. Such application shall, in the first instance, be made on Affidavit and such Affidavits shall include an Affidavit by the person who has actually spoken to and had communication with such parents. Such parents shall not be identified in the body of the Affidavit but their names and addresses present and future shall be set out in a sealed envelope exhibited in such Affidavit. Such exhibit shall be opened by the Judge only and unless by special direction of the Court the names, addresses and identities of such parents shall not be revealed to any of the other parties in the suit.

(3) Upon the hearing of such motion for directions the Court may give such directions as it shall think fit for the hearing of the action and in particular may:—

(

a

) Provide, if necessary, for the representation of such parents and of the father and mother of the child.

(

b

) Fix a date for the hearing in camera of the evidence and submissions on behalf of the applicant and the natural mother in the absence of such parents but in the presence of solicitor or solicitor and counsel representing such parents.

(

c

) Fix a separate date for the hearing in camera of the evidence and submissions by and on behalf of such parents in the absence of the applicant and the natural mother but in the presence of solicitor or solicitor and counsel for the applicant and the natural mother.

16. An application to Court pursuant to Section 6A (3) of the

Guardianship of Infants Act, 1964

(as inserted by

Section 12

of the

Status of Children Act, 1987

) shall be by motion on notice to the mother and not by Summons and shall be entitled in a similar manner as in Rule 2 and shall be grounded on the affidavit of the father seeking to be appointed guardian. Such affidavit shall afford proof of the paternity of the said infant and shall exhibit the written consent of the mother to the appointment of the father as guardian (such consent having been witnessed by a registered medical practitioner or a solicitor) and a true copy of the Birth Certificate of the infant in respect of whom the father wishes to be appointed guardian. The Court may require such proof of paternity of an infant as it thinks fit.

17. The provisions of the Order 119 Rules 2 and 3 shall not apply to any cause, action or proceeding under Orders 70A or 71.

18. These rules shall be construed together with the Rules of the Superior Courts and may be cited as the Rules of the Superior Court (No. 1), 1990.

19. These Rules come into operation on 1st day of May, 1990.

TABLE

CERTIFICATE OF COMPLIANCE WITH SECTION 5 OR (AS THE CASE MAY BE)

SECTION 6

of THE

JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989

XY of

............................................................ ...........................................................

the estranged

spouse of ZY of

............................................................ ............................................................ .................................

S.I. No. 97 of 1990.

RULES OF SUPERIOR COURTS (NO. 1), 1990.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Justice Act, 1936, section 67, and reconstituted pursuant to the provisions of the

Courts of Justice Act, 1953

section 15, by virtue of the powers conferred upon us by the

Courts of Justice Act, 1924

, section 36, and the

Courts of Justice Act, 1936

, section 68 (as applied by the

Courts (Supplemental Provisions) Act, 1961

, section 48) and the

Courts (Supplemental Provisions) Act, 1961

, section 14, and of all other powers enabling us in this behalf, do hereby make the annexed Rules of Court.

Dated this 6th day of December, 1989.

THOMAS A. FINLAY

W. B. ALLEN

BRIAN WALSH

D. R. PIGOT

FRANK GRIFFIN

SEÁN GANNON

HARRY HILL

MICHAEL M. COLLINS

I concur in the making of the annexed Rules of Court.

Dated this 18th day of April, 1990.

RAY BURKE,

Aire Dlí agus Cirt.

RULES OF THE SUPERIOR COURTS (NO. 1), 1990.