House of Commons
|Session 2008 - 09|
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Public Bill Committee Debates
The Committee consisted of the following Members:
Gosia McBride, Committee Clerk
attended the Committee
Sixth Delegated Legislation Committee
Wednesday 25 March 2009
[John Cummings in the Chair]Draft Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009
That the Committee has considered the draft Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009.
It is a pleasure to serve under your chairmanship, Mr. Cummings.
The statutory instrument was laid before Parliament on 25 February 2009 and applies to appeals from decisions of magistrates courts in relation to family proceedings. The proceedings affected are, or may be treated as, family proceedings under section 65 of the Magistrates Courts Act 1980 and proceedings under the Child Support Act 1991. The instrument will change the current destination of appeals from decisions of magistrates family proceedings courts by providing that appeals from such courts shall lie to a county court instead of the High Court. It will also disapply appeals by way of case stated from family proceedings to provide a single process of appeal from decisions of family proceedings courts.
The reform has two main objectives. The first is to clarify and simplify the appeals process by removing the different processes and providing a single process of appeal from decisions of family proceedings courts. That will make the appeal process from such courts more user-friendly and easier to understand. The second objective is to optimise the use of available judicial resources by ensuring that cases are determined at the lowest appropriate level of the court system, which will enable the High Court to focus on matters that genuinely require its expertise.
The present appeals processes from family proceedings courts are complex, having been developed piecemeal over the years in a number of different statutes. There are, for example, statutory provisions giving rights of appeal from decisions of magistrates courts, which are referred to in articles 2 and 3 and 6 to 9 of the instrument. There are different statutory provisions for different types of proceedings.
There are also different ways of starting appeals. For example, some statutory appeals under the Children Act 1989 from family proceedings courts are started by filing a notice of appeal. Others, such as appeals under section 29 of the Domestic Proceedings and Magistrates Courts Act 1978, are started by lodging a notice of motion. Where there are no statutory rights of appeal, the means to challenge a family proceeding courts decision, other than by judicial review, is by applying to have a case stated for the opinion of the High Court. That process falls under section 111 of the Magistrates Courts Act 1980.
In practice, all those different processes can be complicated and difficult to understand, particularly for a litigant in person. The most complicated of those processes is an appeal by way of case stated for the opinion of the High Court, which, as I have said, is made under section 111 of the 1980 Act. That method of appealing against the decision of magistrates courts applies to criminal, civil, and family proceedings. At present, once an application has been made to a magistrates court to have a case stated, and that application questions the proceeding on the grounds that it is wrong in law or in excess of jurisdiction, the procedure is as follows: the magistrates draw up a document that records the facts that they have found, the submissions of the parties and the magistrates opinion that led to the decision; that is then submitted to the High Court for its opinion.
Article 4(2) of the statutory instrument adds to section 111 of the 1980 Act a new subsection, which provides that an application to have a case stated for the opinion of the High Court cannot be made in family proceedings. Article 4(3) of the instrument inserts into the 1980 Act new section 111A, which changes the application to have a case stated for the opinion of the High Court into a regular appeal to a county court on restricted grounds that the decision was wrong in law or in excess of jurisdiction. Now, a county court will decide whether or not the decision of the magistrates court is wrong in law or in excess of jurisdiction.
The present two-stage process, whereby an application is first made to the magistrates court, which then submits the document to the High Court, will be replaced by one notice of appeal outlining the restricted grounds of the appeal to the county court. We believe that that will streamline and simplify the processes for court users and remove unnecessary complexity, enabling easier access to justice.
One of the benefits of case stated appeals is that the reasons for the decision of the FPCs are outlined for the consideration of the High Court. To ensure that a county court hearing an appeal from the FPC has sufficient information about the FPCs decision, the president of the family division will issue a practice direction stating that written reasons must be given by the FPCs for their decisions in all family proceedings. The Lord Chief Justice is also being invited to make a practice direction to that effect in relation to proceedings such as those in the magistrates court under the Child Support Act 1991other than under section 20 of that Actbecause those are technically outside the presidents jurisdiction.
We believe that that will assist the county court in determining the appeals from the FPC until the new family procedure rules are implemented, which will put FPCs under an obligation to provide written reasons. Those rules will not be implemented before 2010, and the practice direction is scheduled to come into effect at the same time as this statutory instrument.
Mr. Mark Oaten (Winchester) (LD): Will the Minister bring the subject to life for me by giving a couple of real-life examples of the kind of cases we are talking about? I am not entirely familiar with the type of child or family cases that could be affected by the proposed change.
Bridget Prentice: The types of case affected are those heard at the very basic level in the magistrates court, rather than those that already go to the higher courts. I will come back to the hon. Gentleman with some specific examples in a moment, as my mind has gone blank and I am trying to think of one.
Mr. Oaten: Would it be, for example, cases involving arguments over child custody, access and similar issues?
Bridget Prentice: It could be arguments over access, but it is more likely to be child support cases, which to some extent will tread on access issues, but it is more likely to be about funding for child care. They will be the most common cases, but access can occasionally be part of those.
The Family Proceedings (Amendment) Rules 2009, which were made by the Family Proceedings Rule Committee, amends the Family Proceedings Rules 1999; we laid that instrument before Parliament on 12 March this year. It contains adjustments to the court rules relating to appeals to ensure that those rules will be able to accommodate the appeals coming to a county court from decisions of FPCs as a result of the draft order before us today coming into effect. All the appeals from FPCs to a county court will be started by a notice of appeal, and the rule amendments, together with the practice direction, are designed to enable appeals from the decisions of FPCs to county courts to operate effectively in practice.
The power to prescribe alternative routes of appeal is provided in section 56 of the Access to Justice Act 1999. It allows the Lord Chancellor to provide, by order, that appeals that lie to a county court, the High Court or the Court of Appeal shall lie instead to another of those courts, as specified in the order. The Lord Chancellor makes that change after consulting the heads of judicial divisions: the Lord Chief Justice, the Master of the Rolls, the president of the Queens bench division, the president of the family division and the chancellor of the High Court. They have all been consulted, as required, and have indicated that they are content with the provisions of the statutory instrument.
Under section 56(7) of the 1999 Act, an application to have a case stated for the opinion of the High Court constitutes an appeal. The Government consider that the reference to an application to have a case stated in subsection (7) is to the whole case stated procedure and not only to the application to the magistrates court. It is therefore open the Lord Chancellor to make an order providing that appeals by way of case stated from the magistrates court lie to a county court instead of the High Court.
Appeals by way of case stated are an example of the supervisory jurisdiction of the High Court over inferior courts. The county court is an inferior court and it would not, therefore, be appropriate for an appeal to a county court to be by way of case stated. As section 56 of the 1999 Act specifically permits appeals by way of case stated to be moved from the High Court to a county court, the Governments view is that it is a proper exercise of the section 56 power to provide that the application to have a case stated should be a regular appeal, but on the restricted grounds of appeals on point of law and fact referred to in new section 111A of
The Government are committed to delivering fair and simple routes to access to justice. I realise that in outlining the provisions of the draft statutory instrument, it sounds incredibly dry and technical, but the outcome should be that it becomes a lot easier for people to have access to justice. That includes using the available judicial resources to best effect to provide effective, efficient and speedy civil and family court processes. The purpose is to promote public confidence in the court system and provide user-friendly court procedures. That is the principle underlying the two successful public consultations.
The first consultation, Focusing judicial resources appropriately: The Right Judge for the Right Case, was a joint Government and judicial initiative aimed at reducing the work load of the High Court and ensuring that cases are determined at the lowest, most appropriate level in the system, according to the level of complexity. Parts of those proposals were implemented in November 2008, with the introduction of the family law Allocation and Transfer of Proceedings Order 2008, which sets out the criteria for starting family proceedings at each level of court. One of the benefits of that allocation order is that more family cases will be started in the FPCs and transferred from the county courts to them. That would pave the way for county courts to have the capacity to hear more cases than are currently heard by the High Court. If the statutory instrument is approved, that will include appeals from decisions of FPCs, which are currently heard by the High Court.
Recent statistics indicate that the number of appeals from FPCs to the High Court is low. In 2006, approximately 57 appeals were issued in the High Court from decisions of FPCs. That number slightly increased to 60 in 2007, but in 2008 the number of appeals from the FPCs to the High Court dropped back to 45. Those figures do not include appeals issued in the district registries, but the Government consider that the provisions of the statutory instrument are unlikely to lead to a significant increase in the work load of the county courts.
The second public consultation, which underpins the statutory instrument, is the 2006 Family Procedure Rules consultation. That consultation sought public views on proposals to introduce a single form of appeal notice, to re-route appeals from FPCs from the High Court to the county court and to abolish case stated appeals in family proceedings in order to provide an effective operation of the family justice system. As in the previous public consultation, a clear majority of respondents supported the policy proposals underlying the appeals provisions of the 2006 Family Procedure Rules consultation. Comments provided by respondents formed the basis of the initial draft of the statutory instrument.
We consulted further with more than 200 stakeholders, including the judiciary, legal professional bodies and the Family Procedure Rule Committee, as well as consumer and representative bodies, charity organisations and other Government Departments with an interest in the proposal. That consultation sought views on the scope, practicalities and aims of the statutory instrument. The majority of respondents who chose to comment supported
The changes brought by the statutory instrument support an effective and efficient appeals process in the family justice system. It will clarify and simplify the process, making it more user-friendly for court users, and make more efficient use of available judicial resources by reducing pressures on the High Court and enabling it to concentrate on more complex cases. The changes will also contribute to our commitment to deliver fair and simple routes to access to justice.
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a great pleasure to serve under your chairmanship, Mr. Cummings.
We broadly welcome the proposals and will not vote against them. I am sure that that will come as a relief to my friend the Labour Whip, the hon. Member for Wrexham, who looked a bit anxious at the start when numbers were a touch depleted. We have read the 2006 Family Procedure Rules paper.
I should declare an interest. I did some family law when at the Bar and I know a little about applications to have a case stated on the ground that it is either wrong in law or in excess of jurisdiction. I agree with the Minister that that is a two-stage process. The parties make a submission, the magistrates draw up a document that records the facts that they have found, and there is then an application in the magistrates court and then a submission to the High Court. The process is complex and time-consuming and it always struck me as a convoluted route. I can see why a certain momentum has built up to replace that process with a regular appeal to the county courta one-stage process.
Will the Minister enlighten me as to what will happen to those cases in which there is a statutory right of appeal to the High Court? Section 94 of the Children Act 1989, for example, has that right of appeal built into it. Will those appeals remain in place or will they be re-routed as set out in paragraph 8.13 of the explanatory memorandum?
The New Order accordingly includes amendments re-routing appeals under section 4(7) of the Maintenance Orders Act 1958 and sections 10 (1)(a) and 13 (1) of the Crime and Disorder Act 1998 from the High Court to a county court.
Those are two specific examples of the re-routing of appeals from the High Court to the county court, but I can think of a dozen other examples where there is a statutory right of appeal. It would be interesting if the Minister could enlighten us further on that matter.
I obviously take on board what the Minister said about her Governments commitment to delivering fair and simple routes to access to justice, but that must not be done at the expense of historical rights of appeal. We are wary of taking away any historical rights of appeal. There is certainly an argument regarding costs and an argument on the ground of simplicity, but the Minister must be made aware of how Conservative Members feel about the lower court and the experience of its judges. Dont get me wrongI have appeared over the years in front of many district and county court judges and
Will the Minister also look at the directions that will be made by the president of the family division and ensure that a copy of them is put in the Library? That is important. I gather that the directions will come out shortly. The explanatory memorandum states that the president of the family division
will be invited to make directions under section 9 of the Courts and Legal Services Act 1990 allocating the appeals from the magistrates courts which are re-routed to a county court by the New Order to a circuit judge.
It will be useful to look at those directions when they are available.
I wish to ask the Minister about another matter, regarding paragraph 8.10 of the explanatory memorandum. At the moment, the rules of court do not require written reasons to be prepared in relation to all family proceedings. This could create a problem, as the Minister has pointed out. Paragraph 8.10 states:
It is therefore very unlikely that the county court considering an appeal from the decision of a magistrates court on the ground that the decision is wrong in law or in excess of jurisdiction would have to cope with a situation where there was no information about the reasons for that decision.
This matter is going to be dealt with by a practice direction from the president of the family division, emphasising the importance of judges giving reasons.
The Minister has said in the explanatory notes that it is unlikely that there will be a problem. I do not think that that is good enough. We need to have a categorical assurance that there will not be a problem as far as this issue is concerned. Even one or two cases affecting our constituents, in which those written reasons that have been properly prepared by the magistrates were not in place, could cause problems. One can think of occasions when the courts are under a great deal of pressure and when the clerk to the justice is under pressurefor example, if a clerk is ill and a deputy clerk takes over. If even one case a year went on appeal without those written reasons being properly prepared, that would be very serious indeed. So it is all very well for the Minister to talk about a practice direction from the president of the division, but surely there should be an absolute, cast-iron safeguard that there will not be a problem in this particular respect. Will she have a look at this issue, and put our minds at rest?
I also notice this great new Labour wording: stakeholder consultation. If we are fortunate enough to win the next election, we will certainly make a bonfire of some of the jargon that this Government have put in place. I see from the stakeholder consultation that a lot of people have been consulted. However, two key user groups are apparently not on the list of those bodies that have been consulted, although perhaps they have been consulted. I am thinking of the associations representing district judges and county court judges, which will obviously play a pivotal part in the new appeal process.
Could the Minister say a few words about the extra costs to the county court system? Yes, costs in the family division of the High Court might well be saved, but what about extra costs to the county courts at a time when they are under a great deal of pressure anyway? Also, could she just say a word or two about onward appeals? We are taking away an historical right of appeal, which we should do only when the arguments for doing so are overwhelming. Presumably, onward appeals from the county court will be able to go to the High Court, as they can at the moment, and thence to the Court of Appeal and beyond, if need be.
Finally, the Minister mentioned that there were not too many FPC appeals per year. Can she tell us exactly how many there have been over, say, the last couple of years, just to give us some idea about the number of cases that we are talking about?
In conclusion, we give the Government our broad support and there is no doubt that the Minister has consulted properly on this issue, apart from those two associations of judges that I mentioned, which are important consultees. I would be grateful if she could answer my questions before we finally vote this particular order through.
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