The new single Family Court

Tuesday 22 April 2014 will see the introduction of a new single Family Court in England and Wales, which will deal with the vast majority of family cases in future.

The old family court system, spread between the County Court, the Family Proceedings Court and the High Court will be swept away. The old system was always anachronistic; in general terms, County Court District Judges and Circuit Judges dealt with disputes arising between married couples (divorces and financial disputes, children disputes, and injunction proceedings) whereas the Family Proceedings Court (FPC) magistrates dealt with disputes about children between unmarried couples and care proceedings. The High Court tended to be the preserve of the high value, complicated case.

The distinction between the County Court and FPC had become increasingly blurred over the years. Injunction proceedings were rarely issued in the FPC, and the county court tended to deal with them regardless of whether the couple was married or unmarried. Solicitors preferred not to issue applications about children in the FPC if they could possibly avoid it and would instead issue them in the County Court. Circuit Judges were heavily involved in care cases.  

The single Family Court brings this all to an end. It groups District Judges, Circuit Judges, lay magistrates and High Court Judges together in a new single Court, effectively merging the FPC and the family jurisdiction of the County Court. The High Court’s involvement will v limited to only the most complicated or unusual cases, although High Court judges can be assigned to cases in the Family Court. The County Court no longer will handle any family cases. No new court buildings have been built, and the Family Court is a new administrative rather than physical entity. Instead the Family Court will allow HM Courts & Tribunals Service resources to be used more effectively. All applications must be issued at the Designated Court Family Court for the area and then the actual hearing may take place at a number of other courts throughout the area. For example, an application for an order might be issued at the Designated Family Court in Chelmsford, but be listed for a hearing at Colchester Magistrates Court or Ipswich County Court.

The Ministry of Justice‘s preference for couples to resolve disputes using mediation instead of the court is also enhanced by a new rule requiring potential applicants to attend a Mediation Information & Assessment Meeting with a mediator before he or she will be able to issue non-urgent applications at the court (subject to certain exceptions, such as in domestic violence cases).

These changes are being introduced simultaneously with the introduction of the Children and Families Act 2014. This introduces new Child Arrangements Orders, which will replace the old Residence Orders (often still called “custody” by non-lawyers) and Contact Orders (which non-lawyers often still call “access”). Whether this is more than just a change in terminology designed to reduce conflict between parents remains to be the seen. The Act also introduces a statutory presumption that it is in children’s bests interests for both parents to be involved in their lives, although the Act is very clear that this should not considered to be an automatic presumption of equality, as demanded by groups such as Fathers 4 Justice. This change is expected to be brought into force in Autumn 2014. It is doubtful that this new presumption will make much difference; courts already assume that both parents should be involved their children unless there is a very good reason why they should not be.

The changes are likely to be for the good for the most part. However, there have been some missed opportunities. Disputes about property between unmarried couples are in something of a no-man’s land. These disputes are currently governed by an unsatisfactory mish-mash of two separate statutes; the Trust of Land and Appointments of Trustees Act 1996 (dealing with joint ownership of property) and the Children Act 1989, Schedule 1 (dealing with financial provision for children of unmarried couples), which struggle to achieve a fair outcome that meets everyone’s needs.

Case law says very clearly that applications under these statutes should be dealt with with the court at the same time. However, confusingly, TLATA 1996 claims are still defined as civil cases, not family cases. Children Act 1989 claims are most definitely family cases, not civil ones. The Family Court has no civil jurisdiction and what remains of the County Court has no family jurisdiction. Therefore, the two applications cannot be dealt with together. The solution to this conundrum is not yet clear. This is a missed opportunity. It could easily have been resolved by defining TLATA disputes between couples as being family cases, and even better, by applying the Family Procedure Rules 2010 to them, rather than using civil procedure, which is not well suited to family disputes.

14 April 2014

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