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
122

(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
(b)
on payment of the fee (if any) prescribed under section 92 of
the Courts Act 2003,
5

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
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
10
court to the Court of Appeal.
(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
15
(1)
Payment 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
20
required 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,
25
payments 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
30
family 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
35
proceed 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
40
which 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
45
court 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.

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 1 — Establishment of the family court
123

(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
order.
(8)
In this section—
5
(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
the Children Act 1989), a reference to that local
authority, and
10
(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;
15
(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 or the Maintenance Orders
20
(Reciprocal Enforcement) Act 1972.
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.
(2)
Any entry in a book or other document required to be kept by
25
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
proceeding referred to by it and of the regularity of that proceeding.
30
(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
exercise functions of the Lord Chief Justice under this section.
35
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
service.
40
(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
corruptly giving a false certificate under section 133(1) of that Act.
45
(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.

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 1 — Establishment of the family court
124

31O
Legal advisers and assistants
(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.
5
(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
10
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
15
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
20
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
25
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
30
(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
35
(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
40
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
45
done in carrying out functions of the family court or of a judge of the
court—

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 1 — Establishment of the family court
125

(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,

if, but only if, it is proved that the person acted in bad faith.
(10)
If an action is brought in circumstances in which subsection (8) or (9)
5
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)
if it does so, may if it thinks fit order the person bringing the
10
action to pay costs.
(11)
The Lord Chief Justice may nominate a judicial officer 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
Legal advisers and assistants: costs and indemnity
15
(1)
A court may not order a person to pay costs in any proceedings in
respect of anything done or not done in carrying out functions of the
family court, or of a judge of the family court, in execution (or
purported execution) of the person’s duties as a legal adviser or
assistant legal adviser.
20
(2)
Subsection (1) does not apply in relation to any proceedings in which
a person—
(a)
is being tried for an offence or is appealing against a
conviction, or
(b)
is proved to have acted in bad faith in respect of the matters
25
giving rise to the proceedings.
(3)
A court which is prevented by subsection (1) from ordering a person
to pay costs in any proceedings may instead order the Lord
Chancellor to make a payment in respect of the costs of a person in
the proceedings.
30
(4)
The Lord Chancellor may, after consulting the Lord Chief Justice,
make regulations specifying—
(a)
circumstances in which a court must or must not exercise the
power conferred on it by subsection (3), and
(b)
how the amount of any payment ordered under subsection
35
(3) is to be determined.
(5)
In the following provisions of this section “indemnifiable amounts”,
in relation to a person, means—
(a)
costs which the person reasonably incurs in or in connection
with proceedings in respect of anything done or not done in
40
the execution (or purported execution) of the person’s duties
as a legal adviser or assistant legal adviser,
(b)
costs which the person reasonably incurs in taking steps to
dispute a claim which might be made in such proceedings,
(c)
damages awarded against the person or costs ordered to be
45
paid by the person in such proceedings, or
(d)
sums payable by the person in connection with a reasonable
settlement of such proceedings or such a claim.

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 2 — The family court: further amendments
126

(6)
The Lord Chancellor must indemnify a person in respect of
indemnifiable amounts if, in respect of the matters giving rise to the
proceedings or claim, the person acted reasonably and in good faith.
(7)
Subject to subsection (6), the Lord Chancellor may indemnify a
person in respect of indemnifiable amounts unless it is proved, in
5
respect of the matters giving rise to the proceedings or claim, that the
person acted in bad faith.
(8)
Any question whether, or to what extent, a person is to be
indemnified under subsections (6) and (7) is to be determined by the
Lord Chancellor who may in particular, at the request of a person
10
claiming to be indemnified, make for this purpose determinations in
anticipation of a settlement and provisional determinations in
anticipation of costs being incurred.
(9)
The Lord Chief Justice may nominate a judicial officer holder (as
defined in section 109(4) of the Constitutional Reform Act 2005) to
15
exercise functions of the Lord Chief Justice under this section.
31Q
Orders, regulations and rules under Part 4A
(1)
Any power of the Lord Chancellor to make an order, regulations or
rules under this Part—
(a)
is exercisable by statutory instrument,
20
(b)
includes power to make different provision for different
purposes, and
(c)
includes power to make supplementary, incidental,
consequential, transitional, transitory or saving provision.
(2)
The Lord Chancellor may not make regulations under section 31P(4)
25
unless a draft of the statutory instrument containing the regulations
(whether alone or with other provisions) has been laid before, and
approved by a resolution of, each House of Parliament.
(3)
A statutory instrument that—
(a)
contains an order, regulations or rules made under this Part
30
by the Lord Chancellor other than regulations under section
31M, and
(b)
is not subject to any requirement that a draft of the
instrument be laid before, and approved by a resolution of,
each House of Parliament,
35

is subject to annulment in pursuance of a resolution of either House
of Parliament.”
Part 2
The family court: further amendments
Maintenance Orders Act 1958 (c. 39)
40
2
The Maintenance Orders Act 1958 is amended as follows.
3     (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
the end substitute “to be registered in the family court and, subject to those

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 2 — The family court: further amendments
127

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
registered” substitute “the High Court”.
5
      (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
order” and “magistrates’ court order” substitute—
10
““High Court order” means an order made by the High Court;”.
      (6)
Omit subsections (4) to (6) (registration in magistrates’ courts).
4     (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
order to the original court, and the court” substitute “order may apply to the
15
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)
for “original court”, in both places, substitute “High Court”, and
20
(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)
for “The officer of, or for, a court” substitute “An officer of the family
25
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)
omit “or county court”, and
30
(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).
      (8)
In subsection (6ZC)—
35
(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)
In subsection (6A) omit the definition of “magistrates’ court order” and the
“and” preceding the definition.
40
5
In section 2A (interest on registered orders)—
(a)
omit subsections (1) to (4) (magistrates’ court orders),

Crime and Courts Bill [HL]
Schedule 10 — The family court
Part 2 — The family court: further amendments
128

(b)
in subsection (5) (registered orders do not carry interest) omit
“Except as provided by this section”, and
(c)
for the title substitute “No interest on sums recoverable under
registered orders”.
6
In section 3 (enforcement of registered orders) omit subsections (2) to (2B)
5
and (3A) (orders registered in magistrates’ courts).
7
Omit section 4 (variation etc of orders registered in a magistrates’ court).
8     (1)
Section 4A (variation etc of orders registered in High Court) is amended as
follows.
      (2)
Omit subsection (1) (orders to which section applies).
10
      (3)
In subsection (2), and in the title, for “High Court”, in each place, substitute
“family court”.
      (4)
In subsection (2) omit paragraph (a) (including the “and” at the end).
9     (1)
Section 5 (cancellation of registration) is amended as follows.
      (2)
In subsection (2) for “a magistrates’ court” substitute “the family court”.
15
      (3)
Omit subsection (3) (orders registered in High Court).
      (4)
In 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
20
(b), omit “or county court”, and
(b)
for 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
25
Enforcement Act 1991 (standing order, etc), other
than 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
30
in question to be made to the family court or an officer
of 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;”.
35
      (6)
Omit subsection (6) (registration of a magistrates’ court order).
      (7)
In subsection (7)—
(a)
for “subsections (5) and (6)” substitute “subsection (5)”, and
(b)
omit “and “magistrates’ court order””.
Administration of Justice Act 1960 (c. 65)
40
10    (1)
Section 13 of the Administration of Justice Act 1970 (appeals in cases of
contempt of court) is amended as follows.