4. The principal Rules are amended by inserting, immediately after rule 295C, the following Part:“PART 17B | Vulnerable adults act 2018 |
| Definitions and application |
295D.—(1) In this Part, unless the context otherwise requires —| “Act” means the Vulnerable Adults Act 2018, and any reference to a section is to be construed as a reference to a section in the Act; |
| “Code” means the Criminal Procedure Code (Cap. 68); |
| “Court” means the Family Division of the High Court or a Family Court, or a judge of the Family Division of the High Court or a judge of the Family Court, whether sitting in Court or in Chambers. |
| (2) Expressions used in this Part that are used in the Act have the same meanings in this Part as in the Act. |
| (3) Subject to this Part, Parts 1, 3, 18 and 19 of these Rules and rule 21 apply, with the necessary modifications, to any proceedings under Division 1, 2 or 3 of Part 2 of the Act. |
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| Relevant provisions of Code and other written law |
295E.—(1) For the purposes of section 13(1)(b)(ii), an application under section 12 for an order under section 14(1)(a), (b), (c), (d), (i) or (j), or an application under section 17 to vary, suspend or revoke such an order, is to be dealt with —| (a) | in accordance with only sections 3, 151 and 152 of the Code; and | | (b) | if the application involves the giving of evidence through a live video or live television link, in accordance with section 62A of the Evidence Act (Cap. 97). |
(2) For the purposes of section 13(1)(b)(ii), an application under section 12 for an order under section 14(1)(e), (f), (g) or (h) or 15, or an application under section 17 to vary, suspend or revoke such an order, is to be dealt with —| (a) | in accordance with only the provisions of the Code set out in the Sixth Schedule; and | | (b) | if the application involves the giving of evidence through a live video or live television link, in accordance with section 62A of the Evidence Act. |
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| 295F. Every affidavit, statement, notice or other document in any proceedings under Division 1, 2 or 3 of Part 2 of the Act (other than an application under section 12 for an order under section 14(1)(e), (f), (g) or (h), or an application under section 17 to vary, suspend or revoke such an order) must be entitled in the matter of the vulnerable adult concerned, naming the vulnerable adult, and in the matter of the Act. |
| Assessment of lack of mental capacity |
295G.—(1) An application made under section 12(1), by a person mentioned in section 12(2)(a)(i), (ii) or (iii) in the circumstances mentioned in section 12(2)(a), must be supported by a mental capacity assessment report given by a mental capacity assessor, unless the Court otherwise directs.| (2) The mental capacity assessment report in paragraph (1) must be prepared in Form 64A. |
(3) Where an application mentioned in paragraph (1) is not supported by a mental capacity assessment report mentioned in that paragraph, the Court may —| (a) | strike out the application; or | | (b) | make such other order as it thinks fit. |
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| Medical assessment of physical infirmity, disability or incapacity |
295H.—(1) The Court may direct an applicant mentioned in section 12(2)(b) to provide a medical report, if the Court is not satisfied that the vulnerable adult to whom the application relates suffers from any physical infirmity, disability or incapacity.(2) The medical report in paragraph (1) must —| (a) | be given by a registered medical practitioner; | | (b) | certify that the vulnerable adult to whom the application relates suffers from a physical infirmity, disability or incapacity; and | | (c) | state the medical diagnosis of the vulnerable adult’s condition. |
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(3) Where an applicant fails to comply with any direction given under paragraph (1), the Court may —| (a) | strike out the application; or | | (b) | make such other order as it thinks fit. |
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| Service of Notice of Application |
295I.—(1) Where an application (other than an application under section 12 for an order under section 14(1)(e), (f), (g) or (h) or 15, or an application under section 17 for the variation, suspension or revocation of such an order) is made under section 11(2), 12 or 17, the applicant must, unless the Court otherwise directs, serve a Notice of Application in Form 64B on the following persons:| (a) | in the case of an application concerning a vulnerable adult who does not lack mental capacity, that vulnerable adult; | | (b) | in the case of an application concerning a vulnerable adult who lacks mental capacity, all of the following persons:| (i) | a donee or deputy of that vulnerable adult; | | (ii) | the spouse, each parent, and each child of or above 21 years of age, of that vulnerable adult; | | (iii) | the main caregiver of that vulnerable adult. |
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| (2) Where an application is made under section 7(3) or 10(4), the applicant must serve a Notice of Application in Form 64C on the vulnerable adult, unless the Court otherwise directs. |
| (3) If the application mentioned in paragraph (1) is for an order under section 14(1)(j), the applicant must, unless the Court otherwise directs, serve the Notice of Application on every owner of the residence to which the application relates, in addition to each person mentioned in paragraph (1)(a) or (b), as the case may be. |
(4) Where it is alleged in an application mentioned in paragraph (1) that the vulnerable adult to whom the application relates does not lack mental capacity, any of the following persons may, by filing a notice in Form 64D within 7 days, or such longer period as the Court may direct, after the date of service of the Notice of Application on the vulnerable adult, dispute that allegation:| (a) | a donee or deputy of that vulnerable adult; | | (b) | the spouse, each parent, and each child of or above 21 years of age, of that vulnerable adult; | | (c) | the main caregiver of that vulnerable adult. |
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(5) Upon receipt of a notice in paragraph (4), the Court must —| (a) | hear and determine as a preliminary issue the question whether that vulnerable adult lacks mental capacity; and | | (b) | if the Court finds that the vulnerable adult lacks mental capacity, direct that the Notice of Application be served on every person mentioned in paragraph (4)(a), (b) and (c). |
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| (6) A Notice of Application must, unless the Court otherwise directs, be served within 5 days after the filing of the application mentioned in paragraph (1) or (2), as the case may be. |
(7) An applicant must, as soon as practicable after service of a Notice of Application on any person on whom the Notice of Application is required to be served, file with the Registrar an affidavit or declaration of service (as the case may be) stating the following information:| (a) | that the Notice of Application has been served on that person; | | (b) | the manner of service; | | (c) | the date and place of service. |
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(8) A Notice of Application may be served on an individual —| (a) | by giving it to the individual personally; | | (b) | by sending it by prepaid registered post to the address specified by the individual for service of documents or, if no address is so specified, the individual’s last known residential address or business address; | | (c) | by leaving it at the individual’s last known residential address with an adult person apparently residing there, or at the individual’s last known business address with an adult person apparently employed there; | | (d) | by affixing a copy of the Notice of Application in a conspicuous place at the individual’s last known residential address or business address; | | (e) | by sending it by email to an email address specified by the individual for the service of documents, if the individual had given the individual’s consent to be served in this manner; or | | (f) | in such other manner as the Court may direct. |
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295J.—(1) Where a person served with a Notice of Application under rule 295I objects to the application to which the Notice of Application relates, the person may file a Notice of Objection in Form 64E within 7 days after the service of the Notice of Application, or such longer period as the Court may direct.(2) As soon as practicable after a Notice of Objection has been filed, the Court —| (a) | may direct the person who filed the Notice of Objection to serve the Notice of Objection on the applicant, within such time and in such manner as the Court may specify; and | | (b) | must direct the applicant and the person who filed the Notice of Objection to attend a case conference. |
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| (3) At a case conference, the Court may give such directions as it thinks fit. |
| (4) This rule does not apply if the person served with the Notice of Application under rule 295I is a vulnerable adult to whom the application relates and who does not lack mental capacity. |
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| Application requiring consent of vulnerable adult or owner of residence |
295K.—(1) Subject to paragraphs (2) and (3), an application under the Act that requires the consent of a vulnerable adult, or of every owner of the residence to which the application relates, must be supported by the consent of the vulnerable adult or of every such owner (as the case may be) in Form 64F.(2) If the Court is satisfied that it is impracticable to obtain the written consent of the vulnerable adult or any such owner, the Court may substitute the requirement in paragraph (1) with a requirement that the application mentioned in that paragraph be supported by a declaration made by the applicant —| (a) | stating that consent has been obtained from the vulnerable adult or every such owner, as the case may be; | | (b) | stating the manner in which each consent was obtained; and | | (c) | explaining the circumstances under which each consent was obtained. |
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| (3) The Court may dispense with the requirement in paragraph (1) if the vulnerable adult or every such owner (as the case may be) appears at the hearing to which the application in paragraph (1) relates, to inform the Court that the vulnerable adult or owner consents to the application. |
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| Hearing of applications in Chambers |
295L.—(1) Unless the Court otherwise directs, an application made under section 7(3), 10(4), 11(2), 12 or 17 (other than an application under section 12 for an order under section 14(1)(e), (f), (g), (h) or (i) or 15, or an application under section 17 for the variation, suspension or revocation of such an order) may be heard and determined in Chambers.| (2) The Court may direct that an affidavit or an unsworn statement be filed in support of an application mentioned in paragraph (1). |
(3) Despite paragraphs (1) and (2), the Court may direct any party or person to attend before the Court, and may issue a summons to compel that party or person to appear before the Court, for either or both of the following purposes:| (a) | to give evidence; | | (b) | to be cross‑examined. |
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| (4) Where any party to an application mentioned in paragraph (1) (who has been served with notice of the application) fails to attend on the first or any resumed hearing of the application, the Court may proceed in that party’s absence or give such directions as the Court thinks fit if, having regard to the nature of the application, the Court thinks it expedient to do so. |
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295M.—(1) Paragraphs (2) to (8) apply to an application under section 12 for an order under section 14(1)(e), (f), (g), (h) or (i).(2) The Court may proceed, in the absence of a person against whom the application is made (called in this rule a respondent), to hear and determine the application, if —| (a) | the respondent —| (i) | does not appear at the time and place mentioned in the summons; or | | (ii) | without reasonable excuse, does not appear at the time and place to which the application is adjourned; |
| | (b) | it appears to the Court on oath or affirmation that the summons was duly served on the respondent a reasonable time before the time appointed in the summons for appearing; and | | (c) | no sufficient ground is shown for an adjournment. |
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| (3) A summons for an application mentioned in paragraph (1) must be endorsed with a statement of the matters set out in paragraph (2). |
(4) To avoid doubt, where the Court hears an application mentioned in paragraph (1) in the absence of the respondent, the Court may —| (a) | examine the applicant and any witness called in support of the application; and | | (b) | make an order under section 14(1)(e), (f), (g), (h) or (i) (as the case may be) if the Court is satisfied that the requirements for making the order have been met. |
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(5) Where, pursuant to an application mentioned in paragraph (1), the Court makes an order under section 14(1)(e), (f), (g), (h) or (i) at a hearing in the absence of the respondent, the Court must arrange for the order to be served on the respondent —| (a) | by delivering the order to the respondent personally; | | (b) | by sending the order by prepaid registered post to the last known address of the respondent’s place of residence or business; or | | (c) | by affixing the order to a conspicuous part of the last known address of the respondent’s place of residence. |
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| (6) An order under section 14(1)(e), (f), (g), (h) or (i) sent to the respondent by prepaid registered post in accordance with paragraph (5)(b) is to be treated as duly served on the respondent at the time when the order would in the ordinary course of post be delivered. |
| (7) In proving service by prepaid registered post, it is sufficient to prove that the cover containing the order under section 14(1)(e), (f), (g), (h) or (i) (as the case may be) was properly addressed, stamped and posted by prepaid registered post. |
(8) Where an order under section 14(1)(e), (f), (g), (h) or (i) is made in the absence of the respondent, the order must —| (a) | indicate that the order was made in the absence of the respondent; and | | (b) | be accompanied by a memorandum stating that the respondent may apply under section 17 to revoke that order. |
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(9) Paragraphs (2) to (7) and (8)(a) apply, with the following modifications, to an application under section 17 to vary, suspend or revoke an order under section 14(1)(e), (f), (g), (h) or (i):| (a) | any reference to an application under section 12 for an order under section 14(1)(e), (f), (g), (h) or (i) is to be construed as a reference to the application under section 17; | | (b) | any reference to an order under section 14(1)(e), (f), (g), (h) or (i) is to be construed as a reference to an order, made pursuant to the application under section 17, to vary, suspend or revoke an order under section 14(1)(e), (f), (g), (h) or (i); | | (c) | any reference to an applicant is to be construed as a reference to the person making the application under section 17; | | (d) | any reference to the respondent is to be construed as a reference to the person against whom the application under section 17 is made. |
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| 295N. An order made under section 7(3) or 10(4) must specify a date by which the order must be carried out. |
| Counselling and mediation |
295O.—(1) The Court may, either on its own motion or upon the application of any party at any stage of any proceedings under Division 1, 2 or 3 of Part 2 of the Act, do either or both of the following:| (a) | direct the parties to attend mediation; | | (b) | direct either or both of the parties to attend counselling. |
(2) The mediation or counselling mentioned in paragraph (1) —| (a) | is to be conducted, by such person as the Court may appoint, in such manner as the Court may direct; and | | (b) | may be conducted in the presence of the vulnerable adult, any family member of the vulnerable adult or any other person, as the Court thinks fit. |
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| Report to be forwarded to Family Division of High Court |
295P. Where an appeal is brought to the Family Division of the High Court against any judgment, order or decision of the Court on an application under section 12, a copy of each of the following documents (if any) must be included as part of the record of proceedings to be sent to the Family Division of the High Court:| (a) | a written report submitted under section 14(4)(d); | | (b) | the part of that report that has been redacted. |
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| Declaration of service of Court process servers |
295Q.—(1) A process server attached to the Family Justice Courts must, as soon as practicable after service of a summons issued under Division 2 or 3 of Part 2 of the Act or any document required to be served under this Part, file with the Registrar a declaration of such service in such manner as the Registrar may direct.| (2) Despite section 119 of the Code, a declaration in paragraph (1) is admissible in evidence if it has been filed in accordance with that paragraph. |
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| Advertisements for application under section 14(1)(j) |
295R.—(1) A notice by advertisement under section 14(2)(b)(ii) of a proposed order under section 14(1)(j) must be supported by an affidavit or an unsworn statement —| (a) | setting out the attempts made to locate the owners of the residence to which the proposed order relates; | | (b) | exhibiting a copy of the notice by advertisement in English; | | (c) | if the notice by advertisement is to be published in accordance with section 14(2)(b)(ii)(A) —| (i) | identifying the newspaper (of a language other than English) that the notice by advertisement is to be published in; and | | (ii) | explaining why publishing the notice in that newspaper would be effective in bringing the application for the order to the attention of the owners; |
| | (d) | if the notice by advertisement is to be published in accordance with section 14(2)(b)(ii)(B) — explaining why publishing the notice in the other form mentioned in that provision would be effective in bringing the application for the order to the attention of the owners; and | | (e) | informing those owners that any owner who objects to the proposed order must notify the Director or protector of the objection within 14 days after such publication. |
| (2) For the purposes of section 14(2)(b)(ii), the prescribed period is 14 days. |
(3) After the expiry of the prescribed period in paragraph (2), the Director or protector must file an affidavit or an unsworn statement —| (a) | confirming that none of the owners of the residence to which the proposed order under section 14(1)(j) relates has notified the Director or protector that the owner objects to the proposed order; or | | (b) | if any of those owners has notified the Director or protector of that owner’s objection to the proposed order, identifying each owner who objects to the proposed order. |
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| (4) If the affidavit or unsworn statement mentioned in paragraph (3) identifies each owner who objects to the proposed order, the Court may direct the Director or protector, and every owner who notified the Director or protector of the owner’s objection to the proposed order, to attend a case conference. |
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| Requirements and interim orders under section 14(4) |
295S.—(1) Where the Court imposes a requirement on a person under section 14(4)(a), (b) or (c) or makes an interim order under section 14(4)(e), the applicant must, unless the Court otherwise directs, serve a copy of the requirement or interim order —| (a) | by delivering it to the person personally; | | (b) | by sending it by prepaid registered post to the last known address of the person’s place of residence or business; or | | (c) | by affixing it to a conspicuous part of the last known address of the person’s place of residence or business. |
| (2) A requirement under section 14(4)(a), (b) or (c), or an interim order under section 14(4)(e), does not take effect until the date it is served, whether by the applicant or any other person, on the person to whom the requirement or interim order applies.”. |
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