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The Family Court: “Be careful what you wish for”

Michael Horton, barrister, of Coram Chambers examines the proposed creation of a single family court, the reasons for its establishment, how it might work and whether it is necessary at all.

Michael Horton, barrister, Coram Chambers










Michael Horton, barrister, Coram Chambers

Following on from the recommendations of the Family Justice Review, the Crime and Courts Bill 2012 would, if enacted, create a single family court.  This article examines the background to the Bill, the Bill's provisions, how the single family court might work, and whether it is a necessary or worthwhile measure.

Background
The Family Justice Review, under the chairmanship of David Norgrove, delivered its final report in November 2011.  There was a good deal of attention focussed on its recommendations relating to care proceedings, as well as to the issue of shared parenting following divorce or separation.

It was perhaps easy to lose sight of its recommendation 29, namely that there be a single family court, with a single point of entry, to replace the existing three tiers of court.  All levels of the judiciary, including magistrates, should sit in the family court, with work allocated to a particular level of judiciary according to the complexity of the case.  The Family Division of the High Court would remain, with exclusive jurisdiction in 'inherent jurisdiction' cases and international work of a prescribed description.  Otherwise, High Court judges could sit in the family court dealing with the most complex cases.

'The Government Response to the Family Justice Review: A system with children and families at its heart', published on 6 February 2012, accepted this recommendation.  Ominously perhaps, it stated that the creation of a single family court will facilitate wider reforms to 'enable the more efficient use of court resources', and more effective 'administration of proceedings'.

True to its word, the government included provisions in the Crime and Courts Bill, published very early in the new Parliamentary Session on 10 May 2012, to give effect to these recommendations.  The Bill is currently in Committee Stage in the House of Lords, and the House considered the provisions relating to the family court in committee on 25 June 2012.  No opposition amendments were pressed to a vote, and the only amendments passed were government ones to amend other existing statutes they had omitted when the Bill was first drafted.

Why a single family court?
The family court is a 'good thing'.  Surely no one can be against it?  It is to be the culmination of an aspiration of family practitioners since the 1970s.  A once in a lifetime opportunity to create and fashion a court as we would want it to be.  It will be the vehicle for a radical change of culture.  It will be a new court with a new structure where the work of the court will be directly managed by the judiciary.

Nevertheless, it is worth standing back from the zeal, and asking why this is being done, and being done now.  We are a long way now from the 1970s, when the Finer Report on One Parent Families recommended a family court, and from the 1980s, when the Lord Chancellor's Department set up a review committee to look at the issue.  The family court envisaged by the Bill is very different from that which Finer recommended.  After all, the magistrates will be part of the family court, and it can no longer be said that magistrates' courts provide 'police court protection for the lower orders in their matrimonial troubles'.  Finer reported at a time when the law applicable in the different family courts was fragmented and inconsistent.  Today, all the courts with family law jurisdiction apply more or less the same substantive law.

This process began with the Children Act 1989, which codified the substantive law in both private law and public law proceedings.  It ensured that the magistrates hearing a care case would operate under the same legal framework as the county courts, and more or less, as the High Court.  It also ensured that the one court could deal with all the family law disputes at the same time, eg the local authority's s 31 application, the relative's application for permission to apply for a residence order, the sibling's application for contact.  The 'evolution not revolution' approach was adopted.  All courts had the same statutory powers (the High Court retaining its inherent jurisdiction – albeit curtailed by s 100 of the 1989 Act), and the provisions of Schedule 11 allowed for cases to be allocated to particular levels of court and transferred between courts.

Part IV of the Family Law Act 1996 did the same for family injunctions.  Whilst restrictions remained on the ability of magistrates' courts to deal with cases involving disputed issues of property law, all levels of courts were to have the same statutory powers.  It is true that divorce (and later civil partnership) disputes remained the province of the county courts and the High Court.  Nevertheless, before Norgrove, there had been little call for the family court.  Indeed, in several instances, family proceedings courts and county courts were located in the same building and shared back office staff.  This allowed for quick 'transfers' between such courts and some economies of scale.  This did not require legislation, just sensible joined up administration.

The Family Procedure Rules 2010 was the last major change of relevance to this issue.  Their introduction in April 2011 ensured that, broadly speaking, all courts with family jurisdiction would not only be applying the same substantive law, but also operating under the same procedural code.  As a result, we did not have a family court, but we did and do have family courts.  These courts include provision for 'conciliation' and other forms of ADR, and have the same abilities to garner evidence from independent persons on issues relating to the welfare of children.

The creation of the family court by the Crime and Courts Bill may therefore turn out to be something of a damp squib at the coalface.  The experience for the vast majority of court staff, judiciary, practitioners and litigants alike is likely to be almost identical to what happens now – the same people will be doing the same thing, mostly in the same place.  Magistrates will continue to hear their cases in their current courts.  True, they will finally have their hearings tape-recorded – did we need legislation to make this happen?  At the other end of the spectrum, High Court judges sitting in the family court as judges of the family court are very likely to continue to do so in the Royal Courts of Justice.  The 'big bang' will see a good deal of change in nomenclature, and no doubt a large amount of money spent on logos, livery, and amending court forms and leaflets.  Some of that money might perhaps have been better spent on more staff at the counter and more judges.  Longer term, as can be seen from the provisions of the Bill, the government of the day will be able to 'deploy' family judiciary more efficiently, as well as close and amalgamate court buildings with much less difficulty.  It allows for future cuts to be made that much more easily.  Those bemoaning the shutting of the Inner London and City Family Proceedings Courts in Wells St, London can at least have the consolation that room is expected to be able to be found for the magistrates to move into the 'Principal Registry' – a name which must be on borrowed time.  The way is paved for many more such amalgamations, and the effect on the level of service provided for court users can only be guessed.

The Bill
The Crime and Courts Bill contains provisions relating to a whole miscellany of government proposals.  The theme of those which relate to the legal system are greater flexibility and efficiency, so there will be a single county court to replace the existing county courts, with sittings and venues determined more flexibly than at present.  Tribunal judges will be able to sit in the courts and vice versa.  The provisions relating to the publication of information from family proceedings in the Children Schools and Families Act 2010, which are not yet in force, are never to become law: they are (thankfully) to be repealed.

The Bill makes extensive amendments to existing legislation, most notably to the Matrimonial and Family Proceedings Act 1984.  The 1984 Act contains the existing legislation which allows for particular county courts to have family jurisdiction and for the transfer of certain family proceedings between the High Court and county courts.

Clause 17(3) inserts a new Part 4A into the 1984 Act.  The new section 31A would establish 'a court in England and Wales, called the family court, for the purpose of exercising the jurisdiction and powers conferred on it' by the 1984 Act as amended by the Bill, as well as other legislation (again as amended by the Bill).  The family court is to be a court of record and have a seal.1  It is not entirely clear what is meant by a court of record.  There are at least three possible meanings: (i) it has the power to imprison and impose fines; (ii) it is one which must keep a record of its proceedings and/or one whose proceedings must be recorded; and (iii) it is one in which the doctrine of precedent operates.

The remainder of the Bill's provisions relating to the new family court are contained in Schedules 10 and 11.  Part 1 of Schedule 10 inserts new provisions into the 1984 Act, whereas Part 2 amends other statutory provisions mainly relating to the setting up of the family court.

The family court's jurisdiction
Schedule 11 is entitled 'Transfer of jurisdiction to family court'.  In short, this Schedule removes family jurisdiction from county courts and magistrates' courts.  Instead, this jurisdiction is conferred on the family court.  It does this by amending much of the existing legislation which confers jurisdiction on the existing courts (ie the High court, county courts and magistrates' courts), and instead confers jurisdiction on the High Court and the family court.  This goes for the Married Women's Property Act 1882, the Matrimonial Causes Act 1973, and the Children Act 1989, to name the most important.  Provisions which allow for transfer of cases between the existing levels of court, such as Schedule 11 to the Children Act 1989 and section 57 of the Family Law Act 1996, are repealed as otiose.

It seems therefore that the family court has specific jurisdiction to hear specific disputes.  There would seem to be no difficulty in the family court continuing to join intervenors as parties and resolve questions of disputed beneficial ownership in financial remedy cases.  One issue which is not yet clear is whether concurrent Schedule 1 and ToLATA proceedings could be dealt with in the county court.  Under the Bill, only the High Court and the family court will have jurisdiction to hear the Schedule 1 application, which could be transferred to or from either court under the amended ss 38 and 39 of the 1984 Act.  Only the High Court and the county court will have jurisdiction to hear the ToLATA claim.  The county court would be able to transfer the ToLATA claim to the High Court or, if the right regulations are made, the family court.  Issuing the claim in the High Court means that the usual procedures relating to the ToLATA claim are unavailable.  The same would be true if the case were to be heard in the family court.  The county court will have no jurisdiction to hear family cases anymore, and as the Bill stands, there would be no power to allow a case to be transferred from the family court to the county court. What if one party wants to apply for summary judgment, or adopt some other procedure only available under the CPR?  How can the combined proceedings be heard in the county court?

At the moment, the answer would appear to be to have the case transferred to the High Court and then on to the county court.  This might be possible, but only if suitable orders were made under the amended s 1(1) of the Courts and Legal Services Act 1990.  This provision allows the Lord Chancellor to make orders:- (a) conferring jurisdiction on the High Court in relation to proceedings in which the family court or county courts have jurisdiction; (b) conferring jurisdiction on the family court or county courts in relation to proceedings in which the High Court has jurisdiction; and (c) allocating proceedings to the High Court or to the family court or to county courts.  The High Court can hear the Schedule 1 case, so an order might be made allowing for jurisdiction to be conferred on the county court to hear it and thus for the case to be transferred to the county court.

Sittings and judges of the family court
The family court can sit anywhere: the provisions provide for the utmost flexibility.2  To start off with, it will no doubt sit at the existing court buildings which it will replace/ take over from.  In due course, flexibility and efficiency will be the order of the day.  Every decision maker (bar justices' clerks) in the family court will be a 'judge of the family court', as set out in section 31C.  Classes (a) to (i) are High Court Judges (including deputy High Court judges) and above.  Thus the Master of the Rolls and the Lord Chief Justice could sit as a judge of the family court.  Classes (j) to (o) are circuit judges and district judges of the county court or deputies.  Classes (p) to (v) are various tribunal judges.  Class (w) are assistants to the Judge Advocate General from courts martial!  Finally, class (x) is a district judge (magistrates' courts) and (y) a lay justice of the peace.  Note that s 9 of the Senior Courts Act 1981 is to be amended to allow certain former judges to sit as a judge of the family court.

New s 31C(2) provides that where a decision of the family court has been made by a person in the top classes (ie (a) to (i), High Court Judge or equivalent or higher), that decision must be followed by any judge in the 'lower' classes (ie (j) to (y)), and by legal advisers and assistant legal advisers.  These provisions effectively re-create for the family court the rules of precedent which provide that, for instance, a district judge is bound to follow a decision of a High Court judge.

Distribution of work in the family court
What does the Bill say about the distribution of cases within the family court?  Not much.  New s 31D allows for rules to be made dealing with the composition of the family court, and the distribution of business of the court among judges of the court.  The idea is that the top class of judge, ie High Court judge and above, will be able to hear any case, but the rules may provide for any other class of judge not to be able to hear certain types of case: new s31D(3).  The President can issue a Practice Direction as to which cases should be heard in the High Court and which in the family court under the amended s 37 of the 1984 Act.

The Act leaves all of this work to secondary legislation.  A key issue will be who hears what kinds of cases, and who decides which level of judge to which the case should be allocated.  The government response to Norgrove envisaged that the 'gate keeper function' could be delegated to legal advisers (as justices' clerks are now called).  Ryder J's modernisation updates have talked instead of 'gatekeeping teams' undertaking the allocation of work, consisting of a specialist family legal adviser, a specialist family district judge (magistrates courts), a public law authorised district judge and a s 9 public law authorised circuit judge.  He expected the new system would preserve the right to appeal to the circuit judge on a refusal to allocate to the preferred level of judge.  The applicant should surely be able to – at the very least – express a preference as to the level of judge on issuing proceedings.  This will be the case for a local authority making a public law application, which presumably will have done some pre-action work and therefore have some idea of the likely complexity.  A spouse represented by experienced lawyers who knows that foreign trusts will be an issue in the financial remedy case should surely be able to say that he or she would like the case heard by a High Court judge.  On the other hand, a self-represented litigant might well benefit from being able to apply to the family court and have the court determine the right level of judicial expertise appropriate for the case.

The court's powers
What will the court's powers be?  As set out above, Schedule 11 amends existing family law legislation and thereby confers jurisdiction to hear particular disputes on the High Court and the family court.  There is no general provision giving the family court power to hear 'family business'.  Once it has jurisdiction, what are the court's powers within the proceedings it is hearing?  New s 31E gives to the family court the power to make any order which could be made by the High Court or county court if the proceedings were in either such court.  The one exception is that the family court will not have any judicial review powers: new s 31E(3).  These provisions might in fact be very helpful when considering enforcement.  Consider an order for sale made by a county court district judge in financial order proceedings, where the property is in the husband's sole name and he is not co-operating with the sale.  Currently it is awkward for the wife to take effective enforcement action in these circumstances.  The family court would have the same powers as the High Court and could therefore use powers under the Trustee Act 1925 to vest the property in the wife's name, thereby allowing the order for sale to be more effectively enforced.  Despite the fact that s 7 of the Civil Procedure Act 1997 – which confers on the High Court the statutory power to make 'Anton Piller' search orders – is unamended by the Bill, and thus still refers only to the High Court, the effect of s 31E(1) must surely be that the family court can make such orders.

The High Court can order that proceedings under way in the family court be transferred to the High Court (s 31I).  The family court has the same powers as the High Court to order disclosure against non-parties, grant injunctions or appoint a receiver, allow a document to be executed by a nominated person, as well as the county court's powers to make production orders for prisoners to attend court (s 31J).  It will be able to make a charging order under the Charging Orders Act 1979.

New section 31F is a miscellany of provisions relating to proceedings and decisions, mostly taken from the Magistrates' Courts Act 1980.  At best they appear largely redundant; at worst, they are confusing and muddlesome.  Does the court really need an express power to adjourn proceedings, or a provision that any orders made by the family court may be (a) absolute or conditional; (b) final or interim; (c) made without 'taking evidence', subject to rules of court?3  The family court will have the power to make injunctions – is it necessary to state that the court can include provisions as to how the thing ordered to be done is to be done, or when it should be done by etc?  After all, if those provisions are not included, it is unlikely to be enforceable by way of committal etc.4  New s 31F(5) would in fact create some difficult legal issues.  It provides that, where the family court has power to require the payment of money, an order may allow time for payment or order payment by instalments, and that where the court has ordered payment by instalments, and an instalment is not paid, 'proceedings may be taken as if the default had been made in the payment of all the instalments then unpaid'.  This provision would seem to allow enforcement of the whole of a sum payable by instalments where one is missed, even if the remaining instalments are not due.  This appears to be contrary to the existing law on enforcement of lump sums payable by instalments.  Is this provision intended to change or overrule the existing practice?5 

Most of these issues are already catered for by new s 31F(9).  This section, which copies s 76 of the County Courts Act 1984, provides that, unless express provision is made to the contrary, the general principles of practice in the High Court may be adopted and applied to family court proceedings.  This is of general importance.  Under the FPR 2010, we now have modern rules of court.  Large chunks are borrowed from the CPR 1998.  Many of the terms used in the two sets of rules are identical, and one would expect such terms to be interpreted and applied consistently in both civil proceedings and family court proceedings.  An important aspect of this consistency is that now under FPR 2010 an order of the county court in family proceedings is, in general, final.  Unless there is a liberty to apply provision, if a party wishes to challenge the order, he or she must appeal, even if the complaint is not that the judge got it wrong, but that the judge was misled by fraud or non-disclosure (see PD to Part 30 FPR).  Of course, this is consistent with the provision that every judgment and order of the family court is final and conclusive between the parties, except where there is a contrary provision in the FPR or other legislation.6  And yet, here is new s 31F(6), providing that the family court has power to vary, suspend, rescind or revive any order made by it.7   This provision will need to be removed if the FPR 2010 approach to finality of orders and methods of challenging orders is to be maintained – otherwise there will be unnecessary test cases in 2013.

The last procedural provision relates to witnesses.  New s 31G(6) provides that, where the family court considers that a self-represented litigant is unable to examine or cross-examine a witness effectively, it must find out from the litigant what evidence he is trying to adduce in chief or the matters on which he wishes to cross-examine, and the court must put to the witness 'such questions ... as may appear to the court to be proper.'  Whether this absolute obligation is appropriate is open to debate.8  In H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162, Wood J called for there to be a statutory provision allowing the family courts to appoint a lawyer for a litigant in person who would otherwise have to cross-examine his alleged victim.  He expressed some disquiet about a family judge having to put questions on behalf of a litigant in person in such circumstances.9

Contempt of court in the family court
It seems that the aim of the Bill is for the family court to be treated as the same as the High Court when it comes to contempt of court.  Section 14 of the Contempt of Court Act 1981 limits the power of any court to impose a maximum sentence of two years' imprisonment 'on any occasion'.  The county court is limited to a maximum fine of £2,500.10   The court can only impose an attendance centre order for contempt to persons aged 17 and over.  The High Court and county courts may make a hospital order or guardianship order in relation to any person found in contempt, and remand for the purposes of a medical report under s 35 of the Mental Health Act 1983 if the court considers a contemnor may be suffering from mental illness.11

Paragraph 44 of Schedule 10 would include a tortuous provision in s 14 of the 1981 Act.  New sub-s (4B) would provide: (a) the preceding provisions of this section do not apply to the family court.  On its own, this would remove the limitation on the length of sentence and the ability to make hospital etc orders.  'But' (b) 'this is without prejudice to the operation of section 31E(1)(a) of the Matrimonial and Family Proceedings Act 1984 (family court has High Court's powers) in relation to the powers of the High Court that are limited or conferred by those provisions of this section.'  I think what this means is that, for the purposes of the Contempt of Court Act 1981, the family court is the same as the High Court.  It can make any order that the High Court can under s 31E(1) of the 1984 Act.  It therefore has a maximum sentence of two years' imprisonment on any occasion and has an unlimited power to fine.  If this is right, the new sub-s (4B) is a very cumbersome way of going about it.  Of course, this would be a large extension of the magistrates' powers, which are currently limited to a maximum sentence of two months' imprisonment for breach of an injunction under s 63(3) of the 1980 Act.  However, new s 31H would enable the Lord Chancellor to limit or remove, in circumstances specified in regulations, any of the family court's powers in relation to a person in contempt of court.

Bizarrely, although the general approach is to treat contempt of court the same as in the High Court, failure to comply with a witness summons is singled out for different treatment.  Currently, in the High Court, it is a contempt and subject to two years in prison and/or an unlimited fine.  In the county courts, there is only the power to fine up to £1,000.  The magistrates may impose a prison term of up to one month and/or fine up to £2,500.12   The Bill would give the family court the same powers as the magistrates' courts.    Given the general approach to contempt is to adopt the High Court position, the provisions relating to witness summonses seem unnecessary: why not simply treat non-appearance as a contempt, as in the High Court?

Appeals
At present, appeals from the magistrates' courts in family cases lie to the county courts.  Appeals from a district judge will go to the circuit judge in the county courts, and appeals from a circuit judge or High Court judge will be heard by the Court of Appeal.  However, the family court is to be a single court.  As the Bill currently stands, it is not expressly given any appellate jurisdiction.  An appeal from the family court will go to the Court of Appeal, subject to any order made under s 56(1) of the Access to Justice Act 1999.  This provision will now read: "(1) The Lord Chancellor may by order provide that appeals which would otherwise lie to— (a) a county court, (aa) the family court, (b) the High Court, or (c) the Court of Appeal, shall lie instead to another of those courts, as specified in the order."  The author is unaware of any current provision which allows, say, the High Court itself to hear an appeal from the High Court which would otherwise lie to the Court of Appeal, or a circuit judge in the county court to hear an appeal from a circuit judge in the county court which would otherwise lie to the Court of Appeal.

All the discussion (in particular that of Ryder J in his modernisation updates) assumes that the family court will have appellate jurisdiction (ie magistrates to circuit judge, district judge to circuit judge/ High Court judge).  As such, it might be better for the Bill to say so in plain terms, rather than leaving it to the making of an order under the Access to Justice Act 1999.

Legal advisers
A justices' clerk may act as an adviser to the family court.  An assistant to a justices' clerk may act as an assistant legal adviser to the family court.13  In provisions based on ss 28 and following of the Courts Act 2003, a legal adviser or assistant legal adviser's main functions are to give advice to lay judges on points of law, including practice and procedure.  However, under s 31O(6) their functions are not limited to this, and they can be asked to assist 'any judge of the family court'.  In addition, the FPR may include provision for functions of the family court to be carried out by a legal adviser.  The government's response to Norgrove includes mention of legal advisers being able to carry out 'the gate keeper function (which would determine before whom most cases would be heard); certain procedural orders which are uncontroversial or agreed; and uncontested divorce proceedings'.  If what was special procedure divorce boxwork is now seen as either beneath district judges or an inefficient use of their time, might that not be a reason to amend the substantive law of divorce?

Conclusion
The Bill is clearly going to be passed.  The family court will be with us come April 2013.  Before its implementation, family lawyers will need to engage with the flood of inevitable consultations on the rule changes and other secondary legislation which will really tell us how this new court is to operate.  The Bill shows signs of being prepared in a hurry, as seen by the mass of government amendments tabled at Committee Stage in the House of Lords.  Nevertheless there are important issues to be ironed out before the rules and secondary legislation can be considered.

Many claims are being made for the family court.  However, the Bill itself does little to justify these claims.  Better case management by the judiciary does not need this Bill to make it happen.  Likewise, the 'change of culture', perhaps involving restrictions on the use of expert evidence to avoid delay in care proceedings, does not need this Bill to happen.  Indeed, the courts are already supposed to be gathering information on why care cases are adjourned: family courts need better management and management information, but creating the family court will do nothing to bring it about.  The hope is that the new family court will provide improvements to all those involved in the family justice system.  The worry is that, by itself, the family court will do little to bring those improvements about, and its creation enables the government of the day, acting in the name of efficiency, to close and amalgamate courts to the detriment of court users.

29 June 2012

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Footnotes:
[1] New s 31A(2) of the 1984 Act. 
[2] New s 31B of the 1984 Act governs sittings of the new family court. 
[3] See new s 31F(1) and (2) of the 1984 Act. 
[4] See new s 31F(4), based on s 63(1) of the Magistrates' Courts Act 1980.[5] The provision is based on s 75 of the Magistrates' Courts Act 1980, and applies to any order for the payment of money by a magistrates' court, including a fine on conviction. 
[6] New s 31F(3), borrowed from s 70 of the County Courts Act 1984. 
[7] Seemingly based on s 63(2) of the Magistrates' Courts Act 1980. 
[8] It is based on a relatively unknown provision, s 73 of the Magistrates' Courts Act 1980. 
[9] See paras 23-24 at pp 169-70. 
[10] Section 14(2) of the Contempt of Court Act 1981. 
[11] See ss (2A), (4), and (4A) of the 1981 Act. 
[12] See s 55 of the County Courts Act 1984 and s 97 of the Magistrates' Courts Act 1980. 
[13}See new s 31O(1) and (2).