Crime and Courts Bill [HL]

Session 2012 - 13
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Other Bills before Parliament

Crime and Courts Bill [HL]

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 1 — Establishment of the family court
152

containing provision corresponding to any that might be contained
in the writ.
(3)
Subsection (1) is subject to section 38(3) of the County Courts Act
1984.
(4)
Subsection (1) is without prejudice to, and not limited by, any other
5
powers of the family court.
(5)
The Lord Chancellor may by regulations make provision, about or in
connection with the effect or execution of warrants issued by the
family court for enforcing any order or judgment enforceable by the
court, that corresponds to any provision applying in relation to the
10
effect or execution of writs issued by the High Court, or warrants
issued by the county court, for the purpose of enforcing any order or
judgment enforceable by that court.
31F
Proceedings and decisions
(1)
The family court may adjourn a hearing, and may do so at any time
15
including a time before the hearing has begun.
(2)
Any order made by the family court—
(a)
may be absolute or conditional;
(b)
may be final or interim;
(c)
may, subject to rules of court, be made without taking
20
evidence.
(3)
Every judgment and order of the family court is, except as provided
by this or any other Act or by rules of court, final and conclusive
between the parties.
(4)
Where the family court has power to require the doing of anything
25
other than the payment of money, or to prohibit the doing of
anything, an order of the court made in exercising the power may
contain provision—
(a)
as to the manner in which anything is to be done,
(b)
as to the time within which anything is to be done,
30
(c)
as to the time during which anything is not to be done, and
(d)
generally for giving effect to the order.
(5)
Where the family court has power to require the payment of money,
an order of the court made in exercising the power may allow time
for payment or order payment by instalments; and where the court
35
has ordered payment by instalments and default is made in the
payment of any one instalment, proceedings may be taken as if the
default had been made in the payment of all the instalments then
unpaid.
(6)
The family court has power to vary, suspend, rescind or revive any
40
order made by it, including—
(a)
power to rescind an order and re-list the application on
which it was made,
(b)
power to replace an order which for any reason appears to be
invalid by another which the court has power to make, and
45
(c)
power to vary an order with effect from when it was
originally made.

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 1 — Establishment of the family court
153

(7)
Subject to rules of court, the family court may proceed in the absence
of one, some or all of the parties.
(8)
The family court has the same power to enforce an undertaking
given by a solicitor in relation to any proceedings in that court as the
High Court has to enforce an undertaking given by a solicitor in
5
relation to any proceedings in the High Court.
(9)
In any case not expressly provided for by or in pursuance of this or
any other Act, the general principles of practice in the High Court
may be adopted and applied to proceedings in the family court.
31G
Witnesses and evidence
10
(1)
Subsection (2) applies where the family court is satisfied that a
person in England and Wales is likely to be able to give material
evidence, or produce any document or thing likely to be material
evidence, in proceedings in the court.
(2)
The court may, if it is satisfied that it is in the interests of justice to do
15
so, issue a summons—
(a)
requiring the person to attend before the court, at the time
and place specified in the summons, to give evidence,
(b)
requiring the person to attend before the court, at the time
and place specified in the summons, to produce the
20
document or thing, or
(c)
requiring the person to produce the document or thing to the
court.
(3)
Subsection (4) applies where without just excuse—
(a)
a person fails to attend before the court in answer to a
25
summons under subsection (2)(a) or (b),
(b)
a person fails to produce a document or thing in answer to a
summons under subsection (2)(b) or (c), or
(c)
a person attending before the court, whether or not in answer
to a summons under subsection (2), refuses to be sworn or
30
give evidence.
(4)
The court may—
(a)
commit the person to custody until the expiry of a period not
exceeding one month specified by the court or until the
person sooner gives evidence or produces the document or
35
thing, or
(b)
impose on the person a fine not exceeding £2,500, or
(c)
both.
(5)
A fine imposed under subsection (4) is deemed, for the purposes of
any enactment, to be a sum adjudged to be paid by a conviction of a
40
magistrates’ court.
(6)
Where in any proceedings in the family court it appears to the court
that any party to the proceedings who is not legally represented is
unable to examine or cross-examine a witness effectively, the court is
to—
45

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 1 — Establishment of the family court
154

(a)
ascertain from that party the matters about which the witness
may be able to depose or on which the witness ought to be
cross-examined, and
(b)
put, or cause to be put, to the witness such questions in the
interests of that party as may appear to the court to be proper.
5
(7)
Subject to the provisions of any Act or instrument made under an Act
or rule of law authorising the reception of unsworn evidence,
evidence given before the family court is to be given on oath.
(8)
An affidavit to be used in the family court may be sworn before—
(a)
a judge of the court, or
10
(b)
an officer of the court appointed by a judge of the court for
the purpose,

as well as before a commissioner for oaths or any other person
authorised to take affidavits under the Commissioners for Oaths
Acts 1889 and 1891.
15
(9)
An affidavit sworn before any such judge or officer may be sworn
without the payment of any fee.
31H
Contempt of court: power to limit court’s powers
(1)
The Lord Chancellor may by regulations made after consulting the
Lord Chief Justice make provision limiting or removing, in
20
circumstances specified in the regulations, any of the powers
exercisable by the family court when dealing with a person for
contempt of court.
(2)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 109(4) of the Constitutional Reform Act 2005) to
25
exercise functions of the Lord Chief Justice under this section.
31I
Powers of the High Court in respect of family court proceedings
(1)
If the High Court, at any stage in proceedings in the family court,
thinks it desirable that the proceedings, or any part of them, should
be transferred to the High Court, it may order the transfer to the
30
High Court of the proceedings or part.
(2)
The power given by subsection (1) is without prejudice to section 29
of the Senior Courts Act 1981, and is to be exercised—
(a)
in accordance with any directions given as to the distribution
or transfer of proceedings, and
35
(b)
subject to any provision made under section 1 of the Courts
and Legal Services Act 1990 or made by or under any other
enactment.
31J
Overview of certain powers of the court under other Acts
The powers of the family court include its powers under—
40
(a)
section 33 of the Senior Courts Act 1981 (powers exercisable
before commencement of action);
(b)
section 34 of that Act (power to order disclosure or inspection
of documents or property of non-party);
(c)
section 37 of that Act (power to grant injunction or appoint
45
receiver);

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 1 — Establishment of the family court
155

(d)
section 39 of that Act (power to order documents to be
executed or indorsed by nominated person);
(e)
section 70(1) and (2) of that Act (assessors);
(f)
section 57 of the County Courts Act 1984 (evidence of
prisoners);
5
(g)
section 71 of that Act (powers as to payment of costs).
31K
Appeals
(1)
Subject to any order made under section 56(1) of the Access to Justice
Act 1999 (power to provide for appeals to be made instead to the
High Court or county court, or to the family court itself), if any party
10
to any proceedings in the family court is dissatisfied with the
decision of the court, that party may appeal from it to the Court of
Appeal in such manner and subject to such conditions as may be
provided by Family Procedure Rules.
(2)
Subsection (1) does not—
15
(a)
confer any right of appeal from any decision where a right of
appeal is conferred by some other enactment, or
(b)
take away any right of appeal from any decision where a
right of appeal is so conferred,

and has effect subject to any enactment other than this Part; and in
20
this subsection “enactment” means an enactment whenever passed.
(3)
The Lord Chancellor may, after consulting the Lord Chief Justice, by
order make provision as to the circumstances in which appeals may
be made against decisions taken by courts or judges on questions
arising in connection with the transfer, or proposed transfer, of
25
proceedings from or to the family court.
(4)
Except to the extent provided for in any order made under
subsection (3), no appeal may be made against any decision of a kind
mentioned in that subsection.
(5)
At the hearing of any proceedings in the family court in which there
30
is a right of appeal or from which an appeal may be brought with
permission, the judge, if requested to do so by any party, is to make
a note—
(a)
of any question of law raised at the hearing,
(b)
of the facts in evidence in relation to any such question, and
35
(c)
of the court’s decision on any such question and of the court’s
determination of the proceedings.
(6)
Where such a note is made, and whether or not an appeal has been
made, the court—
(a)
on the application of any party to the proceedings, and
40
(b)
on payment of the fee (if any) prescribed under section 92 of
the Courts Act 2003,

is to provide that party with a copy of the note signed by the judge,
and the copy so signed is to be used at the hearing of any appeal.
(7)
Section 81 of the County Courts Act 1984 (powers of Court of Appeal
45
on appeal from county court) applies to appeals from the family
court to the Court of Appeal as it applies to appeals from the county
court to the Court of Appeal.

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 1 — Establishment of the family court
156

(8)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 109(4) of the Constitutional Reform Act 2005) to
exercise functions of the Lord Chief Justice under subsection (3).
31L
Enforcement
(1)
Payment of a fine or penalty imposed by the family court may be
5
enforced upon the order of the court in like manner as a judgment of
the court for the payment of money.
(2)
Rules of court may, in relation to cases where under two or more
orders made by or registered in the family court the same person is
required to make periodical payments to the same recipient, make
10
provision—
(a)
for recovery of payments under more than one of the orders
to be dealt with in the same proceedings;
(b)
for apportioning, between some or all of the orders,
payments made by the person required to make payments
15
under the orders.
(3)
Subsection (4) applies where—
(a)
periodical payments are required to be made, or a lump sum
is required to be paid, to a child under an order made by the
family court, or
20
(b)
periodical payments are required to be made to a child under
an order registered in the family court.
(4)
Any sum required under the order to be paid to the child may be
paid to the person who looks after the child, and that person may
proceed in that person’s own name for—
25
(a)
the variation, revival or revocation of the order, or
(b)
the recovery of any sum required to be paid under the order.
(5)
Where a child has a right under any Act or instrument made under
an Act to apply for the revival of an order made by the family court
which provided for the making of periodical payments to or for the
30
benefit of the child, the person who looks after the child may proceed
in the person’s own name for the revival of the order.
(6)
Where any person by whom periodical payments are required to be
paid to a child under an order made by or registered in the family
court applies for the variation or revocation of the order, the person
35
who looks after the child may answer the application in the person’s
own name.
(7)
Nothing in subsections (4) and (5) affects any right of a child to
proceed in the child’s own name for the variation, revival or
revocation of an order or for the recovery of a sum payable under an
40
order.
(8)
In this section—
(a)
a reference to the person who looks after a child is—
(i)
in the case of a child who is being looked after by a
local authority (within the meaning of section 22 of
45
the Children Act 1989), a reference to that local
authority, and

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 1 — Establishment of the family court
157

(ii)
in any other case, a reference to the person who,
disregarding any absence of the child at a hospital or
boarding school and any other temporary absence,
has care of the child;
(b)
“child” means a person under the age of 18;
5
(c)
a reference to an order registered in the family court is a
reference to an order registered in the court under the
Maintenance Orders (Facilities for Enforcement) Act 1920,
Part 2 of the Maintenance Orders Act 1950, Part 1 of the
Maintenance Orders Act 1958, the Maintenance Orders
10
(Reciprocal Enforcement) Act 1972 or Part 1 of the Civil
Jurisdiction and Judgments Act 1982.
31M
Records of proceedings
(1)
The Lord Chancellor may by regulations provide for the keeping of
records of and in relation to proceedings of the family court.
15
(2)
Any entry in a book or other document required to be kept by
regulations under subsection (1), or a copy of any such entry or
document purporting to be signed and certified as a true copy by a
judge of the family court, is at all times without further proof to be
admitted in any court or place as evidence of the entry and of the
20
proceeding referred to by it and of the regularity of that proceeding.
(3)
The Lord Chancellor must consult the Lord Chief Justice before
making regulations under this section.
(4)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 109(4) of the Constitutional Reform Act 2005) to
25
exercise functions of the Lord Chief Justice under this section.
31N
Summonses and other documents
(1)
Where any summons or other process issued from the family court is
served by an officer of the court, the service may be proved by a
certificate in a prescribed form showing the fact and mode of the
30
service.
(2)
Section 133(2) of the County Courts Act 1984 (offence and
punishment) applies in relation to any officer of the family court
wilfully and corruptly giving a false certificate under subsection (1)
as it applies in relation to any officer of the county court wilfully and
35
corruptly giving a false certificate under section 133(1) of that Act.
(3)
Sections 135 and 136 of that Act (offences of pretending to have
court’s authority etc) apply in relation to the family court as they
apply in relation to the county court.
31O
Legal advisers and assistants
40
(1)
A person may act as a legal adviser to the family court only if the
person is a justices’ clerk.
(2)
A person may act as an assistant legal adviser to the family court
only if the person is an assistant to a justices’ clerk.

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 1 — Establishment of the family court
158

(3)
Any reference, in relation to the family court, to a legal adviser or
assistant legal adviser is a reference to a person acting as such in
accordance with subsection (1) or (2).
(4)
The Lord Chancellor may by rules made with the agreement of the
Lord Chief Justice and after consulting the Family Procedure Rule
5
Committee—
(a)
make provision enabling functions of the family court, or of a
judge of the court, to be carried out by a legal adviser;
(b)
make provision enabling functions of a legal adviser
(whether functions given under paragraph (a) or other
10
functions) to be carried out by an assistant legal adviser.
(5)
The functions of a legal adviser include—
(a)
giving advice to lay judges of the family court about matters
of law (including procedure and practice) on questions
arising in connection with the discharge by them of functions
15
conferred on them or the court, including questions arising
when the adviser is not personally attending on them, and
(b)
power, at any time when the adviser thinks that the adviser
should do so, to bring to the attention of lay judges of the
family court any point of law (including procedure and
20
practice) that is or may be involved in any question so arising;

and in this subsection “lay judge of the family court” means a judge
of the court who is within section 31C(1)(y).
(6)
Subsection (5) does not limit—
(a)
the functions of a legal adviser, or
25
(b)
the matters on which any judge of the family court may
obtain assistance from a legal adviser.
(7)
A legal adviser is not subject to the direction of the Lord Chancellor
or any other person when carrying out—
(a)
a function of the family court or of a judge of the court, or
30
(b)
a function specified in subsection (5);

and an assistant legal adviser when carrying out any such function is
not subject to the direction of any person other than a legal adviser.
(8)
No action lies against a person in respect of anything done or not
done in carrying out functions of the family court or of a judge of the
35
court—
(a)
in execution of the person’s duties as a legal adviser or
assistant legal adviser, and
(b)
in relation to matters within the person’s jurisdiction.
(9)
An action lies against a person in respect of anything done or not
40
done in carrying out functions of the family court or of a judge of the
court—
(a)
in purported execution of the person’s duties as a legal
adviser or assistant legal adviser, and
(b)
in relation to a matter not within the person’s jurisdiction,
45

if, but only if, it is proved that the person acted in bad faith.