Previous Next

Contents page 60-69 70-79 80-95 96-99 100-109 110-119 120-129 130-139 140-149 150-159 160-169 170-179 180-189 190-199 200-209 210-219 220-229 230-239 240-249 250-259 260-269 Last page

Crime and Courts BillPage 160

(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
5interests of that party as may appear to the court to be proper.

(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) 10a judge of the court, or

(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
15Acts 1889 and 1891.

(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
20Lord Chief Justice make provision limiting or removing, in
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
25defined in section 109(4) of the Constitutional Reform Act 2005) to
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
30be transferred to the High Court, it may order the transfer to the
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
35or transfer of proceedings, and

(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

40The powers of the family court include its powers under—

(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) 45section 37 of that Act (power to grant injunction or appoint
receiver);

Crime and Courts BillPage 161

(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
5prisoners);

(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
10High Court or county court, or to the family court itself), if any party
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) 15Subsection (1) does not—

(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,

20and has effect subject to any enactment other than this Part; and in
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
25arising in connection with the transfer, or proposed transfer, of
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) 30At the hearing of any proceedings in the family court in which there
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) 35of the facts in evidence in relation to any such question, and

(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) 40on the application of any party to the proceedings, and

(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) 45Section 81 of the County Courts Act 1984 (powers of Court of Appeal
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 BillPage 162

(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) 5Payment of a fine or penalty imposed by the family court may be
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
10required to make periodical payments to the same recipient, make
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,
15payments made by the person required to make payments
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
20family court, or

(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
25proceed in that person’s own name for—

(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
30which provided for the making of periodical payments to or for the
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
35court applies for the variation or revocation of the order, the person
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
40revocation of an order or for the recovery of a sum payable under an
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
45local authority (within the meaning of section 22 of
the Children Act 1989), a reference to that local
authority, and

Crime and Courts BillPage 163

(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) 5“child” means a person under the age of 18;

(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
10Maintenance Orders Act 1958, the Maintenance Orders
(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
15records of and in relation to proceedings of the family court.

(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
20admitted in any court or place as evidence of the entry and of the
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
25defined in section 109(4) of the Constitutional Reform Act 2005) to
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
30certificate in a prescribed form showing the fact and mode of the
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)
35as it applies in relation to any officer of the county court wilfully and
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 40Justices’ clerks and assistants: functions

(1) The Lord Chancellor may by rules made with the agreement of the
Lord Chief Justice and after consulting the Family Procedure Rule
Committee—

(a) make provision enabling functions of the family court, or of a
45judge of the court, to be carried out by a justices’ clerk;

Crime and Courts BillPage 164

(b) make provision enabling functions of a justices’ clerk given
under paragraph (a), or specified in subsection (2), to be
carried out by an assistant to a justices’ clerk.

(2) The functions of a justices’ clerk include—

(a) 5giving 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
conferred on them or the court, including questions arising
when the clerk is not personally attending on them, and

(b) 10power, at any time when the clerk thinks that the clerk should
do so, to bring to the attention of lay judges of the family
court any point of law (including procedure and 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
15of the court who is within section 31C(1)(y).

(3) Subsection (2) does not limit—

(a) the functions of a justices’ clerk, or

(b) the matters on which any judge of the family court may
obtain assistance from a justices’ clerk.

(4) 20A justices’ clerk 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

(b) a function specified in subsection (2);

and an assistant to a justices’ clerk when carrying out any such
25function is not subject to the direction of any person other than a
justices’ clerk.

(5) 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
court—

(a) 30in execution of the person’s duties as a justices’ clerk or an
assistant to a justices’ clerk, and

(b) in relation to matters within the person’s jurisdiction.

(6) An 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
35court—

(a) in purported execution of the person’s duties as a justices’
clerk or an assistant to a justices’ clerk, and

(b) in relation to a matter not within the person’s jurisdiction,

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

(7) 40If an action is brought in circumstances in which subsection (5) or (6)
provides that no action lies, the court in which the action is
brought—

(a) may, on the application of the defendant, strike out the
proceedings in the action, and

(b) 45if it does so, may if it thinks fit order the person bringing the
action to pay costs.

Crime and Courts BillPage 165

(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 this section.

31P Orders, regulations and rules under Part 4A

(1) 5Any power of the Lord Chancellor to make an order, regulations or
rules under this Part—

(a) is exercisable by statutory instrument,

(b) includes power to make different provision for different
purposes, and

(c) 10includes power to make supplementary, incidental,
consequential, transitional, transitory or saving provision.

(2) The Lord Chancellor may not make the first rules under section
31O(1) unless a draft of the statutory instrument containing the rules
(whether alone or with other provisions) has been laid before, and
15approved by a resolution of, each House of Parliament.

(3) A statutory instrument that—

(a) contains an order, regulations or rules made under this Part
by the Lord Chancellor other than regulations under section
31M, and

(b) 20is not subject to any requirement that a draft of the
instrument be laid before, and approved by a resolution of,
each House of Parliament,

is subject to annulment in pursuance of a resolution of either House
of Parliament.

25Part 2 The family court: further amendments

Debtors Act 1869 (c. 62)Debtors Act 1869 (c. 62)

2 (1) In proviso (1) to section 5 of the Debtors Act 1869—

(a) for the words from “any court other than” to “is to say,” substitute
30“the county court—”, and

(b) omit paragraph (c).

(2) In that section—

(a) for “superior courts may” substitute “High Court or family court
may”,

(b) 35for “by a superior court”, and for “by any superior court”, substitute
“by the High Court or family court”, and

(c) at the end insert—

Section 31E(1)(b) of the Matrimonial and Family
Proceedings Act 1984 (family court has county court’s
40powers) does not apply in relation to the powers given by
this section to the county court.

Crime and Courts BillPage 166

Maintenance Orders Act 1958 (c. 39)Maintenance Orders Act 1958 (c. 39)

3 The Maintenance Orders Act 1958 is amended as follows, but sections 2(1) to
(5), 2A and 5(2) to (4) of that Act as applied by section 36(3) of the Civil
Jurisdiction and Judgments Act 1982 (re-registration in different Northern
5Ireland court of orders made in England and Wales or Scotland and
registered in a Northern Ireland court) have effect without the amendments
made in them by this Schedule.

4 (1) Section 1 (application of Part 1) is amended as follows.

(2) In subsection (1) (purpose of Part 1) for the words from “to be registered” to
10the end substitute “to be registered in the family court and, subject to those
provisions, while so registered to be enforced in like manner as an order
made by the family court.”

(3) In subsection (2) (registered orders deemed to be made by court in which
registered) for each of “England” and “the court in England in which it is so
15registered” substitute “the High Court”.

(4) In subsection (2A) (orders to which Part applies)—

(a) in paragraph (a) omit “or a county court or a magistrates’ court”, and

(b) in paragraph (b) for “England” substitute “the High Court”.

(5) In subsection (3) for the definition of “High Court order”, “county court
20order” and “magistrates’ court order” substitute—

(6) Omit subsections (4) to (6) (registration in magistrates’ courts).

5 (1) Section 2 (registration of orders) is amended as follows.

(2) In subsection (1) for “or county court order may apply for registration of the
25order to the original court, and the court” substitute “order may apply to the
High Court for registration of the order in the family court, and the High
Court”.

(3) In subsection (2) (original court to send certified copy of order if satisfied no
enforcement steps being taken)—

(a) 30for “original court”, in both places, substitute “High Court”, and

(b) in paragraph (b) for the words from “sent” to “appears to be”
substitute “sent to the family court”.

(4) Omit subsections (3) to (4) and (6) (registration of a magistrates’ court order).

(5) In subsection (5) (order to be registered on receipt of certified copy)—

(a) 35for “The officer of, or for, a court” substitute “An officer of the family
court”, and

(b) for “him” substitute “the court”.

(6) In subsection (6ZA) (registration of High Court or county court order)—

(a) in the words before paragraph (a)—

(i) 40omit “or county court”, and

(ii) for “a magistrates’” substitute “the family”, and

(b) omit paragraph (b) and the word “and” preceding it.

(7) Omit subsection (6ZB) (variation or revocation of orders registered in a
magistrates’ court).

Crime and Courts BillPage 167

(8) In subsection (6ZC)—

(a) omit “or any order under subsection (6ZA)(b) of this section”, and

(b) for “the designated officer for a magistrates’ court” substitute “the
family court”.

(9) 5In subsection (6A) omit the definition of “magistrates’ court order” and the
“and” preceding the definition.

6 In section 2A (interest on registered orders)—

(a) omit subsections (1) to (4) (magistrates’ court orders),

(b) in subsection (5) (registered orders do not carry interest) omit
10“Except as provided by this section”, and

(c) for the title substitute “No interest on sums recoverable under
registered orders”.

7 In section 3 (enforcement of registered orders) omit subsections (2) to (2B)
and (3A) (orders registered in magistrates’ courts).

8 15Omit section 4 (variation etc of orders registered in a magistrates’ court).

9 (1) Section 4A (variation etc of orders registered in High Court) is amended as
follows.

(2) Omit subsection (1) (orders to which section applies).

(3) In subsection (2), and in the title, for “High Court”, in each place, substitute
20“family court”.

(4) In subsection (2) omit paragraph (a) (including the “and” at the end).

10 (1) Section 5 (cancellation of registration) is amended as follows.

(2) In subsection (2) for “a magistrates’ court” substitute “the family court”.

(3) Omit subsection (3) (orders registered in High Court).

(4) 25In subsection (4)(c)(ii) for “a magistrates’ court”, in both places, substitute
“the family court”.

(5) In subsection (5)—

(a) in the words before paragraph (a), and in the words after paragraph
(b), omit “or county court”, and

(b) 30for paragraphs (a) and (b) substitute—

(a) any order which requires payments under the order
in question to be made by any method of payment
falling within section 1(5) of the Maintenance
Enforcement Act 1991 (standing order, etc), other
35than an order which requires payments to be made to
the family court or an officer of that court, is to
continue to have effect, and

(b) any order which requires payments under the order
in question to be made to the family court or an officer
40of that court (whether or not by any method of
payment falling within section 1(5) of the
Maintenance Enforcement Act 1991) is to cease to
have effect;.

(6) Omit subsection (6) (registration of a magistrates’ court order).

Crime and Courts BillPage 168

(7) In subsection (7)—

(a) for “subsections (5) and (6)” substitute “subsection (5)”, and

(b) omit “and “magistrates’ court order””.

11 Section 18 (powers of magistrates to review committals etc) is repealed.

12 (1) 5Section 20 (registration, variation and arrears) is amended as follows.

(2) Omit subsections (1) and (2) (magistrates’ courts: applications for
registration, revocation or variation of maintenance orders).

(3) In subsection (8) (repeated complaints to enforce payment)—

(a) for “a complaint” substitute “an application”, and

(b) 10for “complaint”, in the second and third places, substitute
“application”.

(4) For the title substitute “Repeat applications to enforce payment of
maintenance arrears”.

13 In section 21(1) omit the definition of “magistrates’ court”.

15Public Records Act 1958 (c. 51)Public Records Act 1958 (c. 51)

14 In paragraph 4(1) of Schedule 1 to the Public Records Act 1958 (records
which are public records) after paragraph (a) insert—

(aa) records of the family court;.

Administration of Justice Act 1960 (c. 65)Administration of Justice Act 1960 (c. 65)

15 (1) 20Section 13 of the Administration of Justice Act 1970 (appeals in cases of
contempt of court) is amended as follows.

(2) After subsection (2) insert—

(2A) Paragraphs (a) to (c) of subsection (2) of this section do not apply in
relation to appeals under this section from an order or decision of the
25family court, but (subject to any provision made under section 56 of
the Access of Justice Act 1999 or by or under any other enactment)
such an appeal shall lie to the Court of Appeal.

(3) In subsection (5)(a) (orders and decisions of High Court etc to which section
applies) after “High Court,” insert “the family court,”.

30Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 (c. 63)Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 (c. 63)

16 In section 1(4) of the Domestic and Appellate Proceedings (Restriction of
Publicity) Act 1968 (courts to which section applies) after “the Crown Court”
insert “, the family court”.

Civil Evidence Act 1968 (c. 64)Civil Evidence Act 1968 (c. 64)

17 35In section 12(5) of the Civil Evidence Act 1968 in the definition of
“matrimonial proceedings” for “a county” substitute “family”.

Crime and Courts BillPage 169

Administration of Justice Act 1970 (c. 31)Administration of Justice Act 1970 (c. 31)

18 (1) In section 11 of the Administration of Justice Act 1970 (restriction on powers
of committal under section 5 of the Debtors Act 1869)—

(a) omit the “and” at the end of paragraph (a),

(b) 5in paragraph (b) for the words from “in respect” to “judgment”
substitute “in respect of a judgment”, and

(c) after paragraph (b) insert ; and

(c) by the family court in respect of a High Court or
family court maintenance order.

(2) 10In section 28 of that Act (interpretation)—

(a) for “, “county court maintenance order”” substitute “and “family
court maintenance order””, and

(b) for “, a county court” substitute “and the family court”.

Courts Act 1971 (c. 23)Courts Act 1971 (c. 23)

19 15Omit section 52(3A) of the Courts Act 1971 (subsection (3) does not apply to
family proceedings in a magistrates’ court).

Attachment of Earnings Act 1971 (c. 32)Attachment of Earnings Act 1971 (c. 32)

20 The Attachment of Earnings Act 1971 is amended as follows.

21 (1) Section 1 (courts with power to attach earnings) is amended as follows.

(2) 20After subsection (1) insert—

(1A) The family court may make an attachment of earnings order to
secure payments under a High Court or family court maintenance
order.

(3) In subsection (2) (county court) omit paragraph (a) (maintenance orders).

(4) 25In subsection (3) (magistrates’ courts) omit paragraph (a) (maintenance
orders).

22 In section 2(b) (meaning of “High Court maintenance order” etc)—

(a) for “, “county court maintenance order” and “magistrates’ court”
substitute “and “family court”, and

(b) 30for “, a county court and a magistrates’ court;” substitute “and the
family court;”.

23 (1) Section 3 (application for order and conditions of court’s power to make it)
is amended as follows.

(2) In subsection (1)(a) (payee may apply) after “through” insert “any court or”.

(3) 35In subsection (1) (applicants) for paragraph (c) substitute—

(c) without prejudice to paragraph (a) above, an officer of the
family court if the application is to the family court for an
order to secure maintenance payments and there is in force
an order that those payments be made to the court or an
40officer of the court;.

Previous Next

Contents page 60-69 70-79 80-95 96-99 100-109 110-119 120-129 130-139 140-149 150-159 160-169 170-179 180-189 190-199 200-209 210-219 220-229 230-239 240-249 250-259 260-269 Last page