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With three working days to go until the single Family Court becomes a reality this is the second article in our series of essential updates, designed to give family law professionals a summary the key changes happening on 22 April 2014.
In a nutshell:
There will be a single Family Court (the official title is just ‘the Family Court').
22 April 2014
The Statutes and Statutory Instruments that make the changes:
Crime and Courts Act 2013
(Plus all of the amended Practice Directions)
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Summary of the changes:
(1) What will the Family Court do? The Family Court will exercise jurisdiction in all family proceedings (with some exceptions - see below) and so there will no longer be separate family jurisdiction in the magistrates' courts and county courts. This is brought about by a new s 31A in the MFPA 1984 (inserted there by the Crime and Courts Act 2013). This means you won't have to work out whether to make your application to the county court or magistrates' court, you just have to make your application to the Family Court.
(2) Where is the single Family Court? The Family Court is a national court and will be able to sit anywhere. In practice it will generally sit at the county and magistrates' courts where family cases are already heard. There will be at least one Designated Family Centre in each Designated Family Judge area and there may be other Hearing Centres too - check on the HMCTS website to find out where your Designated Family Centre is (there isn't a list there at the moment, but hopefully the website will be updated soon). The Principal Registry of the Family Division is now going to be called the Central Family Court. However, the Principal Registry of the Family Division will still exist as a division of the High Court in the Royal Courts of Justice.
(3) Who are the Family Court judges? There are now more categories of judges who will be eligible to hear family cases (for example, a member of the panel of employment judges). A list of the judges is at MFPA 1984, s 31C (which you will find in Schedule 10 to the Crime and Courts Act 2013).
(4) What can justices' clerks do? A justices' clerk can carry out certain functions of the Family Court or of a judge of the Family Court (MFPA 1984, s 31O). An assistant to a justices' clerk can carry out functions of a justices' clerk if authorised and can carry out the functions under s 31O(2) of the MFPA 1984. The Schedule to the Justices' Clerks and Assistants Rules 2014 has a table listing what justices' clerks can do (and less than 3 weeks after the rules were made the table in the Schedule was changed by The Justices' Clerks and Assistants (Amendment) Rules 2014 so, if you're interested in what justices' clerks can do check to make sure you're looking at the right version of the table!).
(5) Which level of judge will a particular case be allocated to? When you apply to the Family Court, the distribution of business rules made under MFPA 1984, s 31D will determine which level of judge the case is allocated to by the ‘gatekeeping team'. These rules are the Family Court (Composition and Distribution of Business) Rules 2014 (the ‘Distribution of Business Rules'). At the back of these rules, in Sch 1, is a handy allocation table which sets out the type of proceedings in the left hand column and the level of judge on the right. For example, your bog standard financial relief proceedings under the MCA 1973 will be allocated to a ‘judge of district judge level'. There is also a Schedule setting out what remedies cannot be granted by certain levels of judge (for example, a search order cannot be granted by a lay justice, district judge or circuit judge). In addition to the Distribution of Business rules the President has drafted guidance on allocating private and public children law proceedings (as well as guidance on continuity and deployment in private and public children law proceedings). Once the gatekeeping team have made their allocation decision they will issue standard directions.
(6) Can a case be re-allocated? What if you're not happy with the level of judge a case has been allocated to? The new FPR 2010, r 29.19 has the answer. If the case has been allocated without a hearing a party can request the court to reconsider allocation. The party can make the request at any hearing where they first have notice of the allocation or in writing no later than 2 days before the first hearing. When the party makes the request they have to notify the other parties too.
(7) Can a case be heard in the High Court? A case may be allocated to a High Court Judge sitting in the Family Court where appropriate but transfer to the High Court will only be permitted by order of a judge of the High Court or above (with very limited exceptions) (MFPA 1984, s 31I and the new FPR 2010, r 29.17 and PD29C).
(8) Can a case be transferred? Transfers from one Designated Family Judge area to another (for example from Bristol to Exeter) should be made under the Part 18 procedure (see the new FPR 2010, r 29.18).
(9) What if the Family Court and the High Court both have jurisdiction? If both the Family Court and the High Court have jurisdiction FPR 2010, r 5.4 says that you have to make your application in the Family Court (unless your proceedings are already in the High Court or another rule, enactment or PD says that you have to make your application to the High Court).
(10) What cases are still heard in the High Court? These types of cases should be made to the High Court (not the Family Court):
(a) inherent jurisdiction cases;
(b) international cases under the Hague Convention or Brussels IIA.
(11) What powers does the Family Court have? Broadly speaking the Family Court has the power to make any order which could be made by the High Court if the proceedings were in the High Court, or the county court if the proceedings were in the county court (although there are some specific limitations - see MFPA 1984, s 31E-31J for details).
(12) How are appeals from the Family Court dealt with? Appeals from the Family Court are covered by s 31K(1) and Access to Justice Act (Destination of Appeals) (Family Proceedings) Order 2014/602. In summary appeals from the Family Court are dealt with as follows:
(a) A decision made by a bench of lay magistrates or a lay justice = appeal to a circuit judge or a judge of High Court judge level sitting in the Family Court if the appeal raises an a important point or principle of practice (no permission needed).
(b) A decision made by a district judge (except the Senior District Judge of the Family Division or a District Judge (PRFD) in proceedings for a financial remedy) = appeal to a circuit judge or a judge of High Court judge level sitting in the Family Court if the appeal raises an a important point or principle of practice (permission needed).
(c) A decision made by a District Judge (PRFD) in proceedings for a financial remedy = appeal to a judge of High Court judge level sitting in the Family Court (permission needed).
(d) A decision made by a Senior District Judge of the Family Division in proceedings for a financial remedy = appeal to a judge of High Court judge level sitting in the Family Court (permission needed).
(e) A decision made by a judge of circuit judge level = appeal to Court of Appeal (permission needed).
(f) A decision made by a cost judge = appeal to a judge of High Court judge level sitting in the Family Court (permission needed).
(g) A judge of High Court judge level = appeal to Court of Appeal (permission needed).
FPR 2010, Part 30 and PD30A are amended to reflect the above and include a handy table. Case management decisions have specific provisions for appeals now - for example the appellant's notice must be filed within 7 days (see FPR 2010 r 30.4).
(13) What is the shortened financial remedy procedure and when is it used? The shorter procedure for financial remedy applications (the Part 9, Chapter 5 procedure), which used to only apply to proceedings under DPMCA 1978, will now also apply to Schedule 1 proceedings (under the CA 1989), all variation (of a financial order) applications, applications under Article 56 of the Maintenance Regulation and applications under Article 10 of the 2007 Hague Convention.
The shorter procedure goes like this:
(a) Financial statements are exchanged within 14 days after issue of the application. The financial statement is a simplified version of the Form E.
(b) A first hearing is listed between 4 and 8 weeks after the application is issued. The matter is supposed to be dealt with at the first hearing if possible (rather than there then being an FDR and a final hearing). If it isn't possible for the court to determine the case at the first hearing it can give directions (for example, for a further directions hearing, further evidence or final hearing).
If you don't think this shortened procedure is suitable for a particular case (for example, if a case is too complex) you can seek a direction that the normal long procedure (the Part 9, Chapter 4 procedure) should apply instead (new r 9.18A). Take a look at the new PD9A, para 1.2 for examples of cases where seeking such a direction may be appropriate (for example if there are contested issues about the settlement of property).
(14) Any other changes to the FPR 2010? Yes lots (sorry). There are quite a lot of changes relating to the Children and Families Act 2014 but they are dealt with in a separate article (coming soon). As would be expected there are a great deal of changes to terminology (to refer to the Family Court) but substantive changes you may want to look at if you deal with such cases are: Parts 32 and 34 - changes to registration of maintenance orders; the new PD8A (where to start proceedings in applications made under s 17 of the Married Woman's Property Act 1882 (or CPA 2004 equivalent - s 66) and applications for a transfer of tenancy under s 53 and Sch 7 1996 Act) and the completely new Part 37 along with a new PD37A (which covers applications and proceedings in relation to contempt of court and is based on Part 81 of the CPR).
(15) Anything else? Speaking of contempt - take a look at the new The Family Court (Contempt of Court) (Powers) Regulations 2014 which limit the powers exercisable by certain judges of the Family Court when dealing with contempt of court (as one would expect High Court judges have the power to issue more severe sentences than, for example, lay justices). There is also a new fees order - The Family Proceedings Fees (Amendment) Order 2014/877, so check the Schedule at the back before rushing down to court. Good news if you're applying for a domestic violence injunction - the fees for these have been scrapped. Most other fees stay the same - but it's worth a double check beforehand.
(16) What are the transitional provisions? What happens to current proceedings that were started before 22 April 2014 in the county court/magistrates and will continue afterwards. Which rules apply and which court will the case be in? The answer is that the new rules apply and the proceedings will continue in the Family Court. However, the court can apply the old rules or disapply the new rules for the purpose of ensuring that the proceedings are dealt with fairly
(17) Will I reach retirement before I finish reading all of the material that has been published by the Ministry of Justice and the President? Hopefully not - a large proportion of the statutes and statutory instruments listed above concern amending the wording of other Acts so that they refer to the Family Court. For example, The Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014 doesn't really make any huge substantial changes, it just lists where amendments to insert ‘the Family Court' or similar should be made to 14 statutes. So although it looks like a lot of reading, it's not quite as daunting as first it appears. The Crime and Courts Act 2013 (Family Court: Consequential Provision) (No. 2) Order 2014 does the same thing basically, but to different statutes. It also completely revokes a few statutory instruments (they are listed in the schedule), including the Allocation and Transfer of Proceedings Order 2008 (as amended) (this was the instrument that used set out where to issue and when to transfer between the courts - which won't be happening anymore, as everything will be in the Family Court).
(1) Double check where the Family Court will be sitting in your area - in other words where your Designated Family Centre is and where any other Hearing Centres are (they are likely to be in the same building as family cases were before, but there have been some complications - for example the East London Family Court is going to be split between Gee Street and the Royal Courts of Justice for the moment until the building in East London is sorted out - see the President's 10th view).
(2) Get in contact with your local Designated Family Court to see whether there is any further guidance you need to be looking at and digesting. For example, at the Central Family Court (what used to be called the Principal Registry of the Family Division) they are setting up a Financial Remedies Unit (‘FRU') which will hear all financial proceedings and there are extra documents describing the new scheme that practitioners who work out of that court should be aware of.
(3) Change your template orders and documents to say ‘Family Court sitting at [Bristol or wherever]'. Key word search your precedents for the words ‘magistrates', ‘county' (and ‘contact' and residence' for that matter but that's a whole other article - coming soon) and amend accordingly (probably with the words ‘the Family Court' but double check it isn't the High Court).
(4) Try not to panic about the sheer volume of material being sent your way (very late in the day it must be said). We're here to help - check out our Family Law Reform page, which is a free resource bringing together everything you need to know about the family law reforms in one place. On that note, the new version of the Red Book will be published soon with the amended version of the FPR 2010, and insightful expert commentary.
In your 2014 edition of The Family Court Practice, you will find everything you need to know about the implementation of the single Family Court and the single County Court, along with all the latest amendments to the Family Procedure Rules 2010, including the new Part 37 and Practice Direction regarding Contempt of Court and the new rules in respect of MIAMS. The 2014 Red Book will also include the new Public Law Outline, the Child Arrangements Programme and the latest legislation concerning same-sex marriages, forced marriage and domestic violence.