Sir James Munby, President of the Family Division, provided guidance in Family Law last week as to when family law cases should be transferred to the High Court.
Here we take a look at his guidelines to summarise the extent and exercise of the power of judges to transfer cases, dealing with six topics in turn.
The High Court, of which the Family Division is just one part, is a superior court of record with unlimited jurisdiction.
The Family Court was created by statute and has its jurisdiction and composition limited by statute. It is a single court with power to sit at any place within England and Wales – the correct heading for orders is therefore “in the Family Court sitting at X.” Within the Family Court, the puisne judges of the Family Division, the President of the Family Division and section 9 judges sit as “judges of High Court level.” These judges can sit both in the Family Division and the Family Court and therefore it is important for an order to accurately record which they are sitting at.
There is an important distinction between a transfer of a case to the High Court and a case having been allocated within the Family Court to a judge who sits at High Court level.
The Family Court was created on 22nd April 2014 by the Crime and Court Act 2013 (the 2013 Act). All proceedings over which the Family Court had jurisdiction were automatically transferred to it on this date. The jurisdiction of the Family Court is defined by The Matrimonial and Family Proceedings Act 1984 (the 1984 Act) implemented by Section 11 of the 2013 Act which provided for references to the Family Court to replace ones referring to county court in previous statutes. Not all statutes were amended in this way by Section 11 and therefore the Family Court does not have jurisdiction, such as the Child Abduction and Custody Act 1985 or the Inheritance (Provision for Family and Dependants) Act 1975.
The Family Court is permitted by the 1984 Act to use the High Court’s inherent jurisdiction to make supplemental orders that aim to enforce decisions made within its own jurisdiction, such as issuing bench warrants.
The allocation of matters as between the Family Court and the High Court
Per the Family Procedures Rules 2010, in situations where both the Family Court and the High Court have jurisdiction, proceedings must be started in the Family Court, bar few exceptions.
When the Family Court does not have jurisdiction, proceedings must be started in the High Court. There are some matters where the Family Court has jurisdiction, but proceedings must nevertheless be commenced in the High Court. These include issues as to publicity where this is the principal relief sought or applications in medical treatment cases. The High Court has discretion to transfer the case back to the Family Court at any time.
The Family Court (Composition and Distribution of Business) Rules 2014 allows for particularly complex cases or cases that involve substantial assets to be heard in the Family Court by “judges of High Court level.” Certain remedies must be heard by these judges, including an application for a search order or a claim in respect of a judicial act under the Human Rights Act 1998.
Only the Family Division has the power to transfer cases from the Family Court to the High Court. This power is subject to limitations under Family Procedure Rules 2010. In practice, unless the decision is made by the President of the Family Division, an ordinary judge of the Court of Appeal or a puisne judge of the High Court, the transfer will be only temporary for the purpose of making a disclosure order required from HM Revenue and Customs.
Complex or difficult family cases can be heard by Family Division judges or “judges at High Court level” within the Family Court. Since these judges can sit simultaneously in the Family Division and the Family Court, there is no need even for a case linked to one that is proceeding in the High Court to be transferred to the High Court – the same judge can hear both sets of proceedings. Even if a case has been rightly commenced or transferred to the High Court, once a substantive decision has been reached, the remaining issues should be transferred back to the Family Court unless exceptional circumstances require otherwise.
In short, cases should only be heard in the High Court in exceptional circumstances.