Crime and Courts Bill (HL Bill 49)

Section 17

SCHEDULE 10 The family court

Part 1 Establishment of the family court

1 5In the Matrimonial and Family Proceedings Act 1984 after section 31A
(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
10Wales.

(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
15the court may adjourn cases from place to place at any time.

(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) 20The 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.

31C Judges

(1) A person is a judge of the family court if the person—

(a) 25is the Lord Chief Justice,

(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) 30is an ordinary judge of the Court of Appeal (including the
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,

(k) is the Judge Advocate General,

(l) is a Recorder,

(m) holds an office listed—

(i) 5in the first column of the table in section 89(3C) of the
Senior Courts Act 1981 (senior High Court Masters
etc), or

(ii) in column 1 of Part 2 of Schedule 2 to that Act (High
Court Masters etc),

(n) 10is 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,

(p) 15is 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
20and 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 to, or section 31(2) of, that Act),

(t) 25is 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 Employment Judges established for
30England and Wales or for Scotland,

(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

(y) 35is 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
40include—

(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
45(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) A fee-paid, or unsalaried, part-time judge of the family court may not
act as a judge of the court in relation to any proceedings in the court
50in which the judge, or a partner or employer of the judge, or a body

of which the judge is a member or officer, or a body of whose
governing body the judge is a member, is directly or indirectly
engaged as legal representative or agent for any party.

(4) In this section “legal representative” means a person who, for the
5purposes of the Legal Services Act 2007, is an authorised person in
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) 10Rules may be made in accordance with Part 1 of Schedule 1 to the
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
15of the court.

(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
20composed of more than one judge.

(3) Rules about the distribution of business of the family court may in
particular—

(a) prohibit specified judges from conducting specified business;

(b) prohibit judges from conducting specified business unless
25authorised to do so by a specified judicial office holder;

(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
30the court.

(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) 35Rules under this section—

(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) 40Family Procedure Rules are subject to rules under this section.

(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
45different purposes.

(8) Paragraph 5 of that Schedule (duty to make rules to achieve purpose
specified by Lord Chancellor) does not apply in relation to rules
under this section.

(9) In this section “judicial office holder” has the meaning given by
5section 109(4) of that Act.

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

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) 10which could be made by the High Court if the proceedings
were in the High Court, or

(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
15to an enforcement officer, subsection (1)(a) gives the family court
power to issue a warrant, directed to an officer of the family court,
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
201984.

(4) Subsection (1) is without prejudice to, and not limited by, any other
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
25family court for enforcing any order or judgment enforceable by the
court, that corresponds to any provision applying in relation to the
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 30Proceedings and decisions

(1) The family court may adjourn a hearing, and may do so at any time
including a time before the hearing has begun.

(2) Any order made by the family court—

(a) may be absolute or conditional;

(b) 35may be final or interim;

(c) may, subject to rules of court, be made without taking
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
40between the parties.

(4) Where the family court has power to require the doing of anything
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) 45as to the manner in which anything is to be done,

(b) as to the time within which anything is to be done,

(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,
5an order of the court made in exercising the power may allow time
for payment or order payment by instalments; and where the court
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
10unpaid.

(6) The family court has power to vary, suspend, rescind or revive any
order made by it, including—

(a) power to rescind an order and re-list the application on
which it was made,

(b) 15power 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
originally made.

(7) Subject to rules of court, the family court may proceed in the absence
20of 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
relation to any proceedings in the High Court.

(9) 25In 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

(1) Subsection (2) applies where the family court is satisfied that a
30person 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
so, issue a summons—

(a) 35requiring 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
document or thing, or

(c) 40requiring 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
summons under subsection (2)(a) or (b),

(b) 45a 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
give evidence.

(4)
The court may—

(a) 5commit 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
thing, or

(b) impose on the person a fine not exceeding £2,500, or

(c) 10both.

(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.

(6) Where in any proceedings in the family court it appears to the court
15that 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
may be able to depose or on which the witness ought to be
20cross-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
or rule of law authorising the reception of unsworn evidence,
25evidence 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
the purpose,

30as 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
without the payment of any fee.

31H 35Contempt 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
exercisable by the family court when dealing with a person for
40contempt 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.

31I Powers of the High Court in respect of family court proceedings

(1) 45If 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.

(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) 5in 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 10Overview of certain powers of the court under other Acts

The 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
15of documents or property of non-party);

(c) section 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) 20section 70(1) and (2) of that Act (assessors);

(f) section 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) 25Subject 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
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
30Appeal in such manner and subject to such conditions as may be
provided 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) 35take 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
this subsection “enactment” means an enactment whenever passed.

(3) The Lord Chancellor may, after consulting the Lord Chief Justice, by
40order 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
proceedings from or to the family court.

(4) Except to the extent provided for in any order made under
45subsection (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
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) 5of 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
10made, 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,

is to provide that party with a copy of the note signed by the judge,
15and 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
court to the Court of Appeal.

(8) 20The 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
25enforced 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
30provision—

(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
35under 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

(b) 40periodical 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—

(a) 45the 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
benefit of the child, the person who looks after the child may proceed
5in 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
who looks after the child may answer the application in the person’s
10own 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) 15In 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
20authority, 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) 25“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
30Maintenance 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
35records 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
40admitted 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
45defined 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
certificate in a prescribed form showing the fact and mode of the
5service.

(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
10corruptly 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) 15A 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.

(3) Any reference, in relation to the family court, to a legal adviser or
20assistant 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
Committee—

(a) 25make 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
functions) to be carried out by an assistant legal adviser.

(5) 30The 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
conferred on them or the court, including questions arising
35when 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
practice) that is or may be involved in any question so arising;

40and 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

(b) the matters on which any judge of the family court may
45obtain 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—