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Practice Direction: Written Reasons in Proceedings Related to Family Proceedings

This Practice Direction is issued by the Lord Chief Justice with the agreement of the Lord Chancellor.

The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 (“the Destination Order”)

1. The Destination Order comes into force on 6th April 2009 and changes the route of appeal against a decision of the magistrates’ court in family and
related proceedings so that the appeal lies to a county court instead of to the High Court. The relevant statutory appeal route for this Practice Direction is the one contained in section 4(7) of the Maintenance Orders Act 1958 (Variation of orders registered in magistrates’ courts).

2. In addition, as a result of an amendment to section 111 of the Magistrates’ Courts Act 1980 (“the 1980 Act”) by the Destination Order, an application to have a case stated for the opinion of the High Court under section 111 of that Act may not be made in relation to family proceedings. Family proceedings for those purposes are not restricted to the matters listed as “family proceedings” in section 65(1) of the 1980 Act and are defined as –

- proceedings which, by virtue of section 65 of the 1980 Act, are or may be treated as family proceedings for the purposes of that Act; and
- proceedings under the Child Support Act 1991.

3. Section 111A of the 1980 Act, which is inserted by article 4(3) of the Destination Order, provides that in family proceedings (more widely defined for these purposes as explained in paragraph 2 above) a person may appeal to a county court on the ground that a decision is wrong in law or is in excess of jurisdiction – this appeal to a county court replaces the procedure for making an application to have a case stated. Section 111A(3)(a) provides that no appeal may be brought under section 111A if there is a right of appeal to a county court against a decision otherwise than under that section.

4. The two-stage case stated procedure, whereby an application is first made to the magistrates’ court and then that court submits the document to the High Court, is replaced by one notice of appeal outlining the restricted grounds of appeal to a county court. As there will be no document stating the case for a county court, there is a need to ensure that a county court hearing an appeal from a magistrates’ court has sufficient information about the magistrates’ court’s decision.

Written reasons for decisions of magistrates’ courts
5. The President of the Family Division has made a Practice Direction relating to appeals which comes into force on 6th April 2009. Paragraph 3.1 of that Direction makes provision for magistrates’ courts to give written reasons for their decisions in all family proceedings listed in section 65(1) of the 1980 Act. The purpose of this Practice Direction is to make the same provision for written reasons to be given by magistrates’ courts in relation to proceedings which are not listed in section 65(1) of the 1980 Act as family proceedings but which are family proceedings within the wider definition for the purposes of the Destination Order explained above. Those proceedings are proceedings which are or may be treated as family proceedings under section 65(2) of the 1980 Act (for example, proceedings for the enforcement or variation of maintenance orders), and proceedings under the Child Support Act 1991 (other than proceedings under section 20 of the 1991 Act which are referred to in section 65(1) (o) of the 1980 Act).

6. The Family Proceedings Courts (Matrimonial Proceedings, etc.) Rules 1991 (rules 11 and 12) and the Family Proceedings Courts (Children Act 1989)
Rules 1991 (rules 20 and 21) already require the justices’ clerk in consultation with the justice or justices to record in writing the reasons for the court’s
decision and for the justices’ clerk to keep a written note of the substance of oral evidence given at a hearing. Proceedings to which those rules apply
include proceedings under the Children Act 1989 and those under the Domestic Proceedings and Magistrates’ Courts Act 1978. The requirements for the magistrates’ court to give written reasons for its decision and for the justices’ clerk to keep a written note of the substance of oral evidence are not to be restricted to those proceedings covered by those rules but are to apply to all proceedings referred to in paragraph 5 above.

7. Rule 8.2A(4) inserted into the Family Proceedings Rules 1991 by the Family Proceedings (Amendment) rules 2009 provides for written reasons and notes of evidence to be filed and served as soon as practicable after the filing of the notice of appeal in the county court and service of the notice.

Coming into force
8. This Practice Direction comes into force on 6th April 2009.

Lord Chief Justice