Commentary on Sections Schedule 10: The family court
302.Paragraph 1 inserts new sections 31B to 31P into the Matrimonial and Family Proceedings Act 1984.
303.New section 31B (Sittings) provides that sittings of the family court and any other business of the court may take place anywhere in England and Wales. Sittings of the family court at any place may be continuous, intermittent or occasional (new section 31B(2)) and the court shall have power to adjourn cases from place to place at any time (new section 31B(3)). Under new section 31B(4) the Lord Chancellor, after consulting the Lord Chief Justice, shall direct where the family court shall sit and the days and times at which it will sit. The Lord Chief Justice may nominate a judicial office holder to exercise the Lord Chief Justice’s functions under new section 31B (new section 31B(5)). It is expected that any delegation of powers would be to the President of the Family Division as the Head of Family Justice.
304.New section 31C (Judges) lists, at subsection (1), the judges of the family court, and includes (amongst others) all levels of judiciary currently able to deal with family proceedings in the High Court, county courts and magistrates’ courts. Decisions of the family court made by judges of the High Court and above and by former Court of Appeal and High Court judges will be binding on those listed at paragraphs (j) to (y) of subsection (1). Such decisions will also be binding on justices’ clerks and assistants to justices’ clerks except where they are carrying out functions of the court with a judge listed in paragraphs (a), (b) and (c) of subsection (2). Subsection (3) ensures that fee-paid, or unsalaried, part-time judges of the family court who are also engaged in legal practice do not sit in cases in which their firm is acting for a party.
305.New section 31D (Composition of the court and distribution of its business) provides at subsection (1) for the Lord Chief Justice or his or her nominated judicial office holder to make rules, with the agreement of the Lord Chancellor, about the composition of the family court and the allocation of the work of the court to the appropriate level of judiciary. Rules about the composition of the family court may provide for the court to be constituted differently for the purpose of deciding different matters (subsection (2)(a)). For example, such rules may prescribe certain types of proceedings or applications within proceedings that are to be heard by a judge, a single justice of the peace or by a two or three magistrate bench. Rules may also allocate different types of proceedings to specified levels of judiciary and provide that only judges authorised for the purpose may deal with certain proceedings (new section 31D(3)), thereby ensuring that different types of cases are heard by those judges with the relevant expertise. This power to limit the range of proceedings that certain types of judge may deal with does not apply to High Court judges and above (subsection (4)). Before making Rules under new section 31D, the Family Procedure Rule Committee, which is the statutory body responsible for making rules of court governing the practice and procedure to be followed in family proceedings, must be consulted.
306.New section 31E (Family court has High Court and county court powers) enables the family court to make any order that could be made by the High Court if the proceedings were in the High Court, or any order that could be made by the county court if the proceedings were there (subsection (1)). The family court will be able to issue warrants making provision for anything which, were the matter in the High Court, could be included in a writ (subsection (2)). The power in subsection (1) will not extend to orders of a type listed in section 38(3) of the County Courts Act 1984 (“the 1984 Act”) or to other orders prescribed by regulations made under that section (subsection (3)). The Lord Chancellor has the power to make provision in regulations dealing with the effect and execution of warrants issued by the family court. The provision in those regulations will mirror existing provision in relation to High Court writs or county court warrants (subsection (5)).
307.New section 31F (Proceedings and decisions) bestows on the family court certain powers relating to hearings and orders that mirror existing powers contained in the 1984 Act and the Magistrates’ Courts Act 1980. This includes the power to adjourn hearings (subsection (1)). Provision is also made regarding the nature of orders of the family court (subsection (2)), their effect (subsection (3)), what may be contained in orders requiring something to be done, other than the payment of money (subsection (4)), what may be included in an order requiring the payment of money (subsection (5)) and the ability of the family court to vary, suspend, rescind or revive its orders (subsection (6)). The family court will have the ability to proceed in the absence of one or more parties, but this is subject to rules of court (subsection (7)) and it will have the same power as the High Court to enforce an undertaking given by a solicitor in relation to any proceedings before it (subsection (8)). Subsection (9) is a general provision enabling the family court to adopt and apply the general principles of practice in the High Court.
308.New section 31G (Witnesses and evidence), which is modelled on section 97 of the Magistrates’ Courts Act 1980, sets out the circumstances in which the family court may summons a witness to give evidence and produce documents (subsection (2)) and specifies the penalties that the court may impose (subsection (4)) where a person fails to attend before the court or produce documents, without just excuse (subsection (3)). New section 31G(6) provides that where a self representing party appears to be unable to cross-examine a witness effectively, the court may put, or cause to be put, questions to the witness.
309.The family court will have the power to deal with all types of contempt of court that may currently be dealt with in family proceedings in the High Court, county courts and magistrates’ courts. New section 31H (Contempt of court: power to limit court’s powers) enables the Lord Chancellor, after consulting the Lord Chief Justice, to make regulations limiting or removing any of those powers in specified circumstances (subsection (1)). Such regulations may make different provision for different purposes (new section 31P(1)(b)) and may be used, for example, to impose limits on the penalties imposed for certain types of contempt by specified tiers of judiciary in the family court.
310.New section 31I (Powers of the High Court in respect of family court proceedings), which is modelled on section 41 of the 1984 Act, provides at subsection (1) that the High Court may transfer proceedings pending in the family court to the High Court (which will continue to have all jurisdiction to deal with family proceedings that it currently has) where it considers it desirable to do so, without prejudice, and subject to, the matters set out in subsection (2).
311.New section 31J (Overview of certain powers of the court under other Acts) sets out for convenience certain powers of the family court contained in the Senior Courts Act 1981 and the 1984 Act.
312.New 31K (Appeals) provides that any party dissatisfied with a decision of the family court may appeal to the Court of Appeal, subject to any order made under section 56(1) of the Access to Justice Act 1999 which may alter the destination of appeals (subsection (1)). This provision does not duplicate or remove any right of appeal conferred under any other enactment (subsection (2)). Provision may be made by Order (made by the Lord Chancellor after consultation with the Lord Chief Justice or his or her nominee) as to when appeals may be made in relation to decisions on the transfer, or proposed transfer, of proceedings from or to the family court (subsections (3), (4) and (8)). Where requested by a party at any hearing where there is a right to appeal, a judge shall make a note of the matters referred to in subsection (5) which, when signed by the judge may be provided to the party and be used at any subsequent appeal hearing (subsection (6)).
313.New section 31L (Enforcement) makes specific provision at subsection (1) mirroring for the family courts the powers contained in section 140 of the Senior Courts Act 1981 in relation to the enforcement of the payment of a fine or penalty imposed by the court. Subsection (2) enables rules of court (which will be the Family Procedure Rules made under section 75 of the Courts Act 2003) to make provision for the recovery of periodical payments and the apportioning of payments in circumstances where there are two or more orders under which the same person is required to make periodical payments to the same recipient. Subsections (4) to (7) replicate the provisions in section 62 of the Magistrates’ Courts Act 1980 allowing a person with whom a child has his or her home to take certain steps in their own name in relation to an order requiring periodical payments or a lump sum to be paid to a child, without affecting the right of the child to proceed in his or her own name.
314.New section 31M (Records of proceedings), which is modelled on section 12 of the 1984 Act, provides for the Lord Chancellor to make regulations, after consulting the Lord Chief Justice, for the keeping of records (subsections (1) and (3)). Entries made in a book or other document kept under such regulations or a signed and certified copy of such an entry will be admitted as evidence of the entry (subsection (2)).
315.New section 31N (Summonses and other documents) mirrors, for the purposes of the family court, the provisions of section 133(1) of the 1984 Act in relation to proof of service of a summons (subsection (1)), and applies sections 133(2) (subsection (2)), 135 and 136 of that Act (subsection (3)).
316.New section 31O (Justices’ clerks and assistants: functions) contains provisions for the purposes of the family court based on sections 28, 29, 31 and 32 of the Courts Act 2003 regarding the functions (subsections (1), (2) and (3)), independence (subsection (4)) and immunity (subsections (5), (6) and (7)) of justices’ clerks and assistants to justices’ clerks.
317.New section 31P (Orders, regulations and rules under Part 4A) relates to the various powers of the Lord Chancellor to make provision in secondary legislation which are conferred under Part 4A of the Matrimonial and Family Proceedings Act 1984. The parliamentary procedures to apply to the statutory instruments made under those powers are specified in subsections (2) and (3) of that section. By way of example, the procedure in subsection (2), whereby specified regulations and rules may not be made unless a draft of the statutory instrument containing the regulations or rules has been laid before, and approved by, a resolution of each House of Parliament, will be applied when the Lord Chancellor makes the first rules under new section 31O(1) enabling functions of the family court, or of a judge of the court, to be carried out by a justices’ clerk, and enabling functions of a justices’ clerk to be carried out by an assistant to a justices’ clerk.
318.Part 2 (paragraphs 2 to 98) makes amendments to other enactments arising out of the creation of the family court. Principally these amendments are to enable existing family legislation to apply to proceedings in the new family court.
319.Paragraph 99 contains repeals and revocations to legislation in consequence of Parts 1 and 2 of the Schedule.