Crime and Courts Bill (HL Bill 4)

(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
5magistrates’ 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—

(a) 10ascertain 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.

(7) 15Subject 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

(b) 20an 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.

(9) 25An 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
30circumstances 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
35exercise 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
40High 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

(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

5The 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) 10section 37 of that Act (power to grant injunction or appoint
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) 15section 57 of the County Courts Act 1984 (evidence of
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
20Act 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
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
25provided by Family Procedure Rules.

(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
30right of appeal is so conferred,

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
35be made against decisions taken by courts or judges on questions
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
40mentioned in that subsection.

(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) 45of any question of law raised at the hearing,

(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.

(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
5the 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
on appeal from county court) applies to appeals from the family
10court to the Court of Appeal as it applies to appeals from the county
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 15Enforcement

(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
20orders made by or registered in the family court the same person is
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) 25for apportioning, between some or all of the orders,
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
30is required to be paid, to a child under an order made by the
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
35paid to the person who looks after the child, and that person may
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
40an 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
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
45paid 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
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
order.

(8) 5In 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
the Children Act 1989), a reference to that local
10authority, and

(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) 15“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
20Maintenance Orders Act 1958 or the Maintenance Orders
(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) 25Any 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
30proceeding 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
35exercise 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
40service.

(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
45corruptly 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

(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
5only if the person is an assistant to a justices’ clerk.

(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
10Lord Chief Justice and after consulting the Family Procedure Rule
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
15(whether functions given under paragraph (a) or other
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
20arising in connection with the discharge by them of functions
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
25family 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
of the court who is within section 31C(1)(y).

(6) Subsection (5) does not limit—

(a) 30the functions of a legal adviser, or

(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) 35a function of the family court or of a judge of the court, or

(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
40done in carrying out functions of the family court or of a judge of the
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) 45An 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) 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) 5If an action is brought in circumstances in which subsection (8) or (9)
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) 10if it does so, may if it thinks fit order the person bringing the
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 15Legal advisers and assistants: costs and indemnity

(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
20assistant legal adviser.

(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) 25is proved to have acted in bad faith in respect of the matters
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
30the proceedings.

(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) 35how the amount of any payment ordered under subsection
(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
40with proceedings in respect of anything done or not done in
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) 45damages awarded against the person or costs ordered to be
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.

(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
5person in respect of indemnifiable amounts unless it is proved, in
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
10Lord Chancellor who may in particular, at the request of a person
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
15defined in section 109(4) of the Constitutional Reform Act 2005) to
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) 20is exercisable by statutory instrument,

(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) 25The Lord Chancellor may not make regulations under section 31P(4)
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) 30contains an order, regulations or rules made under this Part
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,
35each House of Parliament,

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

Part 2 The family court: further amendments

40Maintenance Orders Act 1958 (c. 39)Maintenance Orders Act 1958 (c. 39)

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

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
5registered” 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
10order” and “magistrates’ court order” substitute—

• ““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
15order 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) 20for “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) 25for “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) 30omit “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).

(8) 35In 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) In subsection (6A) omit the definition of “magistrates’ court order” and the
40“and” preceding the definition.

5 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
“Except as provided by this section”, and

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

6 5In section 3 (enforcement of registered orders) omit subsections (2) to (2B)
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) 10Omit subsection (1) (orders to which section applies).

(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) 15In subsection (2) for “a magistrates’ court” substitute “the family court”.

(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) 20in the words before paragraph (a), and in the words after paragraph
(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
25falling within section 1(5) of the Maintenance
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) 30any order which requires payments under the order
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
35have effect;”.

(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””.

40Administration of Justice Act 1960 (c. 65)Administration of Justice Act 1960 (c. 65)

10 (1) Section 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
family court, but (subject to any provision made under section 56 of
5the 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,”.

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

11 10In 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”.

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

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

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

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

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

(2) After subsection (1) insert—

“(1A) 20The 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) In subsection (3) (magistrates’ courts) omit paragraph (a) (maintenance
25orders).

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

16 (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) In subsection (1) (applicants) for paragraph (c) substitute—

“(c) 35without 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
officer of the court;”.

(4) 40In subsections (1)(d)(ii) and (4)(a) (maintenance payments) for the words
between “or” and “for” substitute “the family court”.