AKA When is a single Family Court not a unified Family Court?
This post is an attempt to explain a rather technical piece of guidance that was issued yesterday. It has been tricky trying to make it easy to get your head around, but we’ve done our best. Here goes…
In 1974 the Report of the Committee on One-Parent Families July 1974 Cmnd 5629 chaired by Sir Morris Finer (a retired High Court judge) – ‘the Finer report’ – was published. Amongst a variety of measures to help single parents – like a special state-paid allowance, housing arrangements and child care help – it recommended a single family court: a unified court with lay magistrates and judges sitting in existing court buildings. High Court judges would be assigned to the new court (4.350). It would include its own conciliation service (which led to the first mediation service in Bristol in 1978).
Had Sir Morris seen President’s Guidance: Jurisdiction of the family court: allocation of cases within the family court to High Court judge level and transfer of cases from the family court to the High Court 28 Februry (sic) 2018 (PGJFC) he would, I suspect, have turned in his grave. The point of this practice guidance is to explain how the ‘complexity of the legislative framework operates’, and why the Family Court and Family Division of the High Court that we have is not demonstrably unified. It certainly does a good job of showing how complex things are!
The Family Court was introduced in April 2014 (nearly four years ago), by amendment of a much older statute (Matrimonial and Family Proceedings Act 1984 ss 31A-31P).
Though a fair number of those who will have to use this guidance will be non lawyers (who can neither pay, nor have legal aid, for their case) and court staff, it is neither clear nor simple. It describes itself as being designed to allay ‘confusion concerning the extent and exercise of the power by judges sitting in the family court to transfer a case, or part of a case, to the High Court’; and to distinguish definition of ‘transfer of a case to the High Court’ and its allocation within the Family Court, for example to a High Court judge. If you weren’t confused before you will be after.
To allocate or transfer
High Court Judges are the most senior type of judge apart from those judges in the Court of Appeal and Supreme Court, who deal only with appeals. High Court Judges deal with a mix of original hearings and appeals. Reading between the lines of PGJFC, it is fairly clear that High Court judges – of whom there are relatively few – are getting fed up with having cases dumped in their lists when they should not be there (ie they are perfectly suitable for hearing by a more junior judge); or because they have been transferred to them by someone who was not one of the rare breed (see FPR 2010 r 29.17 below) who has power to transfer a case into the High Court.
Part of the trick is to be clear of the difference between ‘allocate’ and ‘transfer’ (yes, there is one). Allocate means allocating the case to the right level of judiciary (from magistrates at one end, right up to President of the Family Division at the other) within the Family Court – and only the Family Court. Transfer means moving the file from Family Court to High Court (and only that little band of r 29.17 judges can do that).
Just to complicate things, even if a case must be heard by a Family Division judge that does not necessarily mean it must be moved out of the Family Court. Many cases are heard by High Court judges sitting in the Family Court (and indeed they have a special slot on BAILII devoted to their judgements). Those judgments are not High Court judgments (though they are delivered by the same individual judges), but are differently categorised from run-of-the-mill lesser grade Family Court judges (such as circuit judges and district judges). Each of these two have their own category of BAILII citation. Three categories of judgements from the ‘Single Family Court’ sit side by side: another snort from Sir Morris, I am sure…
‘One Family Court’ and a separate High Court, Family Division
There is only one Family Court. The basic rule is that all applications must be issued in the Family Court unless the Schedule to PGJFC says they ‘must’ be issued in the High Court, Family Division (para 17 and 18).
Applications wrongly issued out of the Family Court will be transferred. If an application is issued wrongly in the Family Court the law says (Matrimonial and Family Proceedings Act 1984 s 39 and FPR 2010 r 29.17) it can only be transferred to the right court – ie the Family Division – by a full High Court judge, President of the Family Division or the Court of Appeal).
If in doubt, the best thing is to issue in the Family Court. If yours is one of those rare and exceptional cases (set out in the Schedule to PGJFC) which should have been issued in the High Court, then it will get transferred. If a case needs a High Court judge in the Family Court there is no need to transfer to the High Court (which very few judges have the power to do anyway: FPR 2010 r 29.17(4)). The case can be re-allocated for hearing in the Family Court by a High Court judge (PGJFC para 30(a); eg because of complexity (para 30(c)); just as a case can be heard by one judge sitting in the Family Court at the same time as she sits in the Family Division (para 30(b)).
Care should be taken to transfer cases back to the Family Court (MFPA 1984 s 38) where they have correctly been issued in the Family Division; but where there is no longer any need for a High Court judge on the case.
What lay people must (and probably do) realise is that there is a variety of levels of judge below High Court judge. The allocation rules are peppered with which level of judge, district judge, recorder etc who can try what type of case. How much longer the Ministry of Justice will train its staff – if they do – to know the difference, on which this practice guidance depends, remains to be seen.
PGJFC and the fissiparation* of BAILII reports is partly bred of this concern with different judicial levels. Everyone who uses the courts must bear this in mind too, till another Morris Finer comes along and successfully sweeps much of it away…
*Ed : we know this is not exactly the plain English that we usually aim for, but it’s such a fantastic word we thought we’d leave it in. It means ‘splitting into parts’.