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Crime and Courts Bill [HL]


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

115

 

Schedule 10

Section 17

 

The family court

Part 1

Establishment of the family court

1          

In the Matrimonial and Family Proceedings Act 1984 after section 31A

5

(which is inserted by section 17) insert—

“31B    

Sittings

(1)   

Sittings of the family court may be held, and any other business of

the family court may be conducted, at any place in England and

Wales.

10

(2)   

Sittings of the family court at any place may be continuous or

intermittent or occasional.

(3)   

Sittings of the family court may be held simultaneously to take any

number of different cases in the same place or different places, and

the court may adjourn cases from place to place at any time.

15

(4)   

The places at which the family court sits, and the days and times at

which it sits in any place, are to be determined in accordance with

directions given by the Lord Chancellor after consulting the Lord

Chief Justice.

(5)   

The Lord Chief Justice may nominate a judicial office holder (as

20

defined in section 109(4) of the Constitutional Reform Act 2005) to

exercise functions of the Lord Chief Justice under this section.

31C     

Judges

(1)   

A person is a judge of the family court if the person—

(a)   

is the Lord Chief Justice,

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(b)   

is the Master of the Rolls,

(c)   

is the President of the Queen’s Bench Division,

(d)   

is the President of the Family Division,

(e)   

is the Chancellor of the High Court,

(f)   

is an ordinary judge of the Court of Appeal (including the

30

vice-president, if any, of either division of that court),

(g)   

is the Senior President of Tribunals,

(h)   

is a puisne judge of the High Court,

(i)   

is a deputy judge of the High Court,

(j)   

is a Circuit judge,

35

(k)   

is the Judge Advocate General,

(l)   

is a Recorder,

(m)   

holds an office listed—

(i)   

in the first column of the table in section 89(3C) of the

Senior Courts Act 1981 (senior High Court Masters

40

etc), or

(ii)   

in column 1 of Part 2 of Schedule 2 to that Act (High

Court Masters etc),

 
 

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

116

 

(n)   

is a district judge (which, by virtue of section 8(1C) of the

County Courts Act 1984, here includes a deputy district judge

appointed under section 8 of that Act),

(o)   

is a deputy district judge appointed under section 102 of the

Senior Courts Act 1981,

5

(p)   

is a Chamber President, or a Deputy Chamber President, of a

chamber of the Upper Tribunal or of a chamber of the First-

tier Tribunal,

(q)   

is a judge of the Upper Tribunal by virtue of appointment

under paragraph 1(1) of Schedule 3 to the Tribunals, Courts

10

and Enforcement Act 2007,

(r)   

is a transferred-in judge of the Upper Tribunal (see section

31(2) of that Act),

(s)   

is a deputy judge of the Upper Tribunal (whether under

paragraph 7 of Schedule 3, or section 31(2), of that Act),

15

(t)   

is a judge of the First-tier Tribunal by virtue of appointment

under paragraph 1(1) of Schedule 2 to that Act,

(u)   

is a transferred-in judge of the First-tier Tribunal (see section

31(2) of that Act),

(v)   

is a member of a panel of chairmen of employment tribunals

20

established for England and Wales,

(w)   

is a person appointed under section 30(1)(a) or (b) of the

Courts-Martial (Appeals) Act 1951 (assistants to the Judge

Advocate General),

(x)   

is a District Judge (Magistrates’ Courts), or

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(y)   

is a justice of the peace who is not a District Judge

(Magistrates’ Courts),

   

but see also section 9 of the Senior Courts Act 1981 (certain ex-judges

may act as judges of the family court).

(2)   

A decision of the family court, if made by or by persons who

30

include—

(a)   

a judge within subsection (1)(a) to (i),

(b)   

a person who has been a judge of the Court of Appeal, or

(c)   

a person who has been a puisne judge of the High Court,

   

is (so far as relevant) to be followed by a judge within subsection

35

(1)(j) to (y), and by a legal adviser or assistant legal adviser, when

carrying out functions of the family court unless doing so with a

person within paragraphs (a) to (c) of this subsection.

(3)   

Subject to subsection (4), no judge or officer of the family court, and

no partner or employer of a judge or officer of the family court, may

40

be directly or indirectly engaged as legal representative or agent for

any party in any proceedings in the court.

(4)   

Subsection (3) does not apply to a fee-paid, or unsalaried, part-time

judge of the family court or to a partner or employer of such a judge,

but such a judge may not act as a judge of the court in relation to any

45

proceedings in the court in which the judge, or a partner or employer

of the judge, is directly or indirectly engaged as legal representative

or agent for any party.

(5)   

In this section “legal representative” means a person who, for the

purposes of the Legal Services Act 2007, is an authorised person in

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

117

 

relation to an activity which constitutes the exercise of a right of

audience or the conduct of litigation (within the meaning of that

Act).

31D     

Composition of the court and distribution of its business

(1)   

Rules may be made in accordance with Part 1 of Schedule 1 to the

5

Constitutional Reform Act 2005 (process for making designated

rules) about—

(a)   

the composition of the family court, and

(b)   

the distribution of business of the family court among judges

of the court.

10

(2)   

Rules about the composition of the family court may in particular—

(a)   

provide for the court to be constituted differently for the

purpose of deciding different matters;

(b)   

make provision about who is to preside where the court is

composed of more than one judge.

15

(3)   

Rules about the distribution of the business of the family court may

in particular—

(a)   

prohibit specified judges from conducting specified business;

(b)   

prohibit judges from conducting specified business unless

authorised to do so by a specified judicial office holder;

20

(c)   

prohibit specified judges from conducting business, or

specified business, unless authorised to do so by a specified

judicial office holder;

(d)   

prohibit specified judges from exercising specified powers of

the court.

25

(4)   

In subsection (3)—

“judge” does not include a judge within section 31C(1)(a) to (i);

“specified” means specified in, or of a description specified in,

rules under this section.

(5)   

Rules under this section—

30

(a)   

may confer powers on the Lord Chief Justice or on a judicial

office holder;

(b)   

may be made only after consultation with the Family

Procedure Rule Committee.

(6)   

Family Procedure Rules are subject to rules under this section.

35

(7)   

The Lord Chief Justice’s power under paragraph 2(2)(b) of Schedule

1 to the Constitutional Reform Act 2005 to nominate a judicial office

holder to make rules under this section includes power to nominate

different judicial office holders to make rules under this section for

different purposes.

40

(8)   

In this section “judicial office holder” has the meaning given by

section 109(4) of that Act.

(9)   

No proceedings in the family court are to be with a jury.

 
 

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

118

 

31E     

Family court has High Court and county court powers

(1)   

In any proceedings in the family court, the court may make any

order—

(a)   

which could be made by the High Court if the proceedings

were in the High Court, or

5

(b)   

which could be made by the county court if the proceedings

were in the county court.

(2)   

In its application to a power of the High Court to issue a writ directed

to an enforcement officer, subsection (1)(a) gives the family court

power to issue a warrant, directed to an officer of the family court,

10

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

15

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

20

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

25

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

30

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

35

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,

40

(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

45

has ordered payment by instalments and default is made in the

 
 

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

119

 

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

order made by it, including—

5

(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

(c)   

power to vary an order with effect from when it was

10

originally made.

(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

15

High Court has to enforce an undertaking given by a solicitor in

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.

20

31G     

Witnesses and evidence

(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.

25

(2)   

The court may, if it is satisfied that it is in the interests of justice to do

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

30

and place specified in the summons, to produce the

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—

35

(a)   

a person fails to attend before the court in answer to a

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

40

to a summons under subsection (2), refuses to be sworn or

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

45

person sooner gives evidence or produces the document or

thing, or

 
 

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

120

 

(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

magistrates’ court.

5

(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—

(a)   

ascertain from that party the matters about which the witness

10

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.

(7)   

Subject to the provisions of any Act or instrument made under an Act

15

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

(b)   

an officer of the court appointed by a judge of the court for

20

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.

(9)   

An affidavit sworn before any such judge or officer may be sworn

25

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

circumstances specified in the regulations, any of the powers

30

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

exercise functions of the Lord Chief Justice under this section.

35

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

High Court of the proceedings or part.

40

(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

 
 

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

121

 

(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—

5

(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

10

receiver);

(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

15

prisoners);

(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

20

High 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.

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(2)   

Subsection (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,

30

   

and 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

35

arising 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.

40

(5)   

At 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,

45

(b)   

of 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.

 
 

 
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Revised 11 May 2012