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Evidence, Practice and Procedure: A new family court

Date:14 MAR 2013

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsIn all the excitement over Legal Aid Sentencing and Punishment of Offenders Act 2012 last year, and the Children and Families Bill this year, many family lawyers have overlooked the fact - trailed by a recommendation for a ‘single family court' in Family Justice Review - that in Crime and Courts Bill cl 16(3) and Sch 10 there is the statutory embodiment of what the Government intend for the recommendation. It is well on its way to the statute book, now known as the ‘Family Court': just as there is to be one County Court (cl 16(1)) so there is to be just one family court (ie not split into levels as now, or dissipated amongst a Family Division and a number of semi-independent county courts and magistrates' courts); though this bill does not seem to complete the job of unification. There will be a variety of new administration, and some delegated legislation and new rules.

Clause 16(3), as the bill now stands (it has already reached its report stage in the House of Commons, having started in the Lords) adds to Matrimonial and Family Proceedings Act 1984 (‘MFPA 1984') a new s 31A, which declares: ‘There is to be a court in England and Wales, called the family court, for the purpose of exercising the jurisdiction and powers conferred on it' in MFPA 1984; and then Sch 10 takes over from there adding ss 32B-31P to the 1984 Act.

In terms of administration alone what Sch 10 leaves out may say as much as the relatively routine new sections which are there: who the judges are to be; enforcement provisions; distribution of business; witnesses and evidence and committal. And yet, what and where is the central administration to be? Who is to be responsible for running the court; and where will power lie as between the President of the Family Division and the senior administrator; between the judges and the general court administration? As judge's become increasingly responsible for case management this question will surely become more and more pressing.

The impression, from the FJR, is that magistrates are to be part of the adjudicative system; and certainly that was how Finer saw it (Report of the Committee on One-Parent Families July 1974 Cmnd 5629 Sir Morris Finer). In this bill magistrates get a one-line reference in s 31C(1)(y) (where they are described in negative terms as ‘a justice of the peace who is not a District Judge (Magistrates' Courts)'); and then again in s 31O(2), where - under the heading ‘Justices' clerks and assistants: functions' - they secure another brief mention, now as a ‘lay judge of the family court'. There must be more: another bill somewhere (or yet to come)? It seems inconceivable that the justices' role in a family court should be explained entirely as an adjunct to the function of their clerks.

Nothing is said of the adversarial-inquisitorial debate amongst common and some family lawyers (eg Neuberger MR v Thorpe LJ: see eg Edgerton v Edgerton [2012] EWCA Civ 181, [2012] 2 FLR 273); of the role of mediation or arbitration parallel to the court process; of the family proceedings which still remain immune to Family Procedure Rules 2010 (eg implied trust litigation); of the delays and expense in family litigation other than preferentially treated care proceedings (there are other children and litigants in need). A reader of Sch 10, if he or she thought that that was all that defined a family court, would be forgiven for thinking that courts are the only conceivable means of dispute resolution. Even in Tribunals, Courts and Enforcement Act 2007 mediation has a walk-on part (s 24) in administrative tribunals.

Let us hope that much remains to play for; and that family law reformers are listened to by whoever is to administer the new court.

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). 

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.