With great power

Matthew Maynard and Tom Duggan consider the impact of a Court of Appeal ruling on the extent of the powers of the Family Court.

“With great power comes great responsibility.” Uncle Ben, Spider-Man (2002)

On 22 April 2014, the “Single” Family Court sprang into being. For those who did not practise in the predecessors, it is probably almost impossible to fathom that family justice was so clearly delineated into three separate courts, each with its own powers, approaches and, dare we say, own quirks. Indeed, prior to 2010, there were entirely separate procedural codes between the High Court/county court on the one hand and the Family Proceedings Court on the other. For those of us who have difficulty remembering one set of rules, having to remember two seemed a little unfair.

The statutory framework that was responsible for bringing about the structural change was the Crime and Courts Act 2013. Given that the same statute set out the powers of the new court, it is perhaps surprising that there has been so much debate about the same in the years that have followed. There is understandable caution on the part of first-instance judges to ensure that they do not stray outside of their powers when confronted with certain applications. Indeed, a similar issue arose in Re G [2019] EWCA Civ 1779, albeit in the context of a first-instance refusal to order injunctive relief under the Human Rights Act 1998 due to the judge’s lack of a section 9 authorisation. The Court of Appeal was clear that, in that case, it needed not to be heard by a High Court Judge for that particular power to be utilised.

Earlier this year, in Re K (Children) (Powers of the Family Court) [2024] EWCA Civ 2, the President of the Family Division reaffirmed the wide and flexible powers of the Family Court. The President reminded practitioners and all ranks of the judiciary that save for a few exceptions, once proceedings are properly issued, the allocated judge or magistrate may make incidental and supplemental orders of a kind that could be made under the inherent powers of the High Court where the purpose of such orders is to give effect to their substantive decision. This article examines the practical consequences of that decision and the possible future direction of the law in this area.

What does that power have to do with responsibility? Well, very little. There can be little doubt that judges are always careful and responsible in their exercise of such powers. The case law is clear in that regard. It just enabled us to start an article with a Spider-Man quote. This was a career objective of one of the authors of this article. Readers are invited to speculate wildly as to which one.

Facts of the appeal

In February 2022, two children were removed from their father’s care under interim care orders and placed with maternal family members. This was in the context of public law proceedings that followed in the immediate aftermath of longstanding private law proceedings. The court’s findings in the private law proceedings in August 2021 that the father had been responsible for alienating, controlling, and coercive behaviour no doubt influenced that removal decision.

At the final hearing of the public law application in May 2023, the circuit judge (who did not hold a section 9 authorisation) made final care orders, endorsing a care plan in which the children would remain in their familial placement. The children’s mother and guardian supported those orders, but the father and B, one of two subject children who was separately represented, opposed them.

One of the concerns of the local authority related to the parental control settings on the children's iPhones. The mother’s case was that the parental control settings remained linked to the father's account meaning that the father could track the children's movements, amongst other things. Before the final hearing, the mother made an application for an injunction against the father in the following terms:

The Father shall by 4pm on 30 June 2023 provide to the Local Authority the details of his Apple ID and password and thereafter shall provide all cooperation necessary to effect the transfer of the parental controls of B and A's Apple ID accounts (including but not limited to forwarding immediately any account-holder authentication passcodes sent to any phone or email address that he has, and forwarding any relevant email or other correspondence from Apple to the Local Authority.

The judge declined to grant the injunction on the basis that, as a circuit judge without section 9 authorisation, she lacked the necessary jurisdiction. She invited parties to apply to refer the application to a section 9 authorised circuit judge, at which point the local Designated Family Judge would consider the application on its merits. As no party made that further application, the trial judge refused to grant the injunction.

The guardian appealed.

The law, rules and guidance

The statutory provisions

The Crime and Courts Act 2013 created a new section 31A of the Matrimonial and Family Proceedings Act 1984 (the MFPA 1984) and produced a single, unified Family Court within which almost all family proceedings are conducted.

Section 31E MFPA 1984 provides:

31E Family court has High Court and county court powers

(1) In any proceedings in the Family Court, the court may make an order –

(a) which could be made by the High Court if the proceedings were in the High Court, or

(b) which could be made by the county court if the proceedings were in the county court…”

Within Part 5 MFPA 1984, sections 38 and 39 permits the transfer of proceedings, or any part of proceedings, from the High Court to the Family Court and from the Family Court to the High Court, whether on the court’s own motion or on the application of a party to proceedings. “Any part of proceedings” means that the High Court is able to determine a single application within proceedings without the entire case having to be reallocated.

The power under section 39 MFPA 1984 to transfer proceedings from the Family Court to the High Court can only be exercised by a judge of the Family Division or Court of Appeal (FPR 2010 r.29.17(3) and (4)). However, PD 29C allows proceedings to be transferred solely for the purpose of making an order under the inherent jurisdiction of the High Court requiring a Government Department or agency to disclose an address to the court (e.g. a DWP order). Note that this does not prevent a judge of a Family Court (for example, a circuit judge) from reallocating to a High Court Judge within the Family Court itself, as will be seen below.

The rules

The Family Court (Composition and Distribution of Business) Rules 2014 (SI 2014/840) (“the Rules”) came into force at the same time as the Single Family Court was created. The Rules divide the judiciary into four levels (1) High Court judge level, (2) circuit judge level, (3) district judge level, and (4) lay justices.

Part 5 of the Rules contains rules 13 to 20. Of note:

a. Rule 13 recites that Part 5 makes provision regarding the initial allocation of work to different levels of judge within the Family Court and refers to Rule 29.19 of the Family Procedure Rules 2010, which allows a judge of the Family Court to re-allocate a matter to a different level of judge.

b. Rule 14 directs that any jurisdiction or power conferred on the Family Court or on a judge of the Family Court may be exercised by any judge of the Family Court, inducing lay justices.

c. Rule 15 gives effect to a schedule (referred to within the Rules as Schedule 1) which allocates certain types of business to certain levels of judge.

d. Rule 17 gives effect to a schedule (referred to within the Rules as Schedule 2) which reserves certain remedies to the High Court.

From their inception, the Rules have made it clear that decision-making on allocation must take into account the need to avoid delay, the complexity of the case, the need for judicial continuity, the location of the parties or of any child relevant to the proceedings, the need to make the most effective and efficient use of local judicial resources, and the resources of the High Court bench in light of the nature and type of the application before the court.

Once a family case has been allocated, judges and Magistrates of the Family Court are equal in terms of the orders that can be made, subject only to the limits on remedies in Schedule 2 to the Rules.

For completeness, a link to the Rules, Schedule 1 (which allocates work to certain judges), and Schedule 2 (which restricts certain levels of judge from granting certain remedies) can be found here. The overwhelming majority of the prohibitions set out within Schedule 2 will not routinely concern private or public law children practitioners, with the exception of an order for disclosure of documents or inspection of property against a non-party.

Guidance

The 2014 guidance

On 22 April 2014, The President’s Guidance on Allocation and Gatekeeping for Care, Supervision and other Proceedings under Part IV of the Children Act 1989 (Public Law) and President’s Guidance on Allocation and Gatekeeping for Proceedings under Part II of the Children Act 1989 (Private Law) was issued (“the 2014 Guidance”). The 2014 Guidance is primarily concerned with allocation decisions. Both the public law and private law versions of the 2014 guidance (updated on 5 June 2020) contain their own schedules. The private law schedule can be found here, and the public law schedule can be found here.

Paragraph H of the 2014 Guidance contains categories of cases that are reserved to the High Court. These include cases with a particular international element and cases concerning the inherent jurisdiction of the High Court. They also include injunctions invoking the inherent jurisdiction, issues as to publicity (identification of a child or restriction on publication or injunctions seeking to restrict the freedom of the media), and applications in medical treatment cases.

The 2021 guidance

In 2018, Munby P (as he then was) issued guidance, later replaced in 2021 by the current President (“the 2021 Guidance”) on issues relating to the jurisdiction of the Family Court and the transfer of cases to the High Court, which can be found here. At paragraph 4 of the 2021 Guidance, the President explains that the High Court, of which the Family Division is part, has unlimited jurisdiction, while the jurisdiction of the Family Court, defined by statute, is very extensive but is not unlimited.

At paragraph 15, the President says:

“Section 31E(1)(a) of the 1984 Act provides that "In any proceedings in theFamily Court, the court may make any order … which could be made by the High Court if the proceedings were in the High Court." This does not permit theFamily Courtto exercise original or substantive jurisdiction in respect of those exceptional matters, including applications under the inherent jurisdiction of the High Court, that must be commenced and heard in the High Court. It does, however, permit the use of the High Court's inherent jurisdiction to make incidental or supplemental orders to give effect to decisions within the jurisdiction of the Family Court.”

Paragraph 17 says that any matter within Part A of the Schedule to the 2021 Guidance must be commenced in the Family Division of the High Court rather than in the Family Court, as the Family Court does not have jurisdiction. This Part relates to matters involving the inherent jurisdiction of the court relating to children (both injunctions and applications for wardship), applications for a Tipstaff Order, adoptions concerning placement outside of England and Wales, and registration of foreign judgments.

Paragraph 17 also states that any matter within Part B of the Schedule to the 2021 Guidance must be commenced in the Family Division of the High Court but may be transferred to the Family Court thereafter. This part notably concerns issues relating to publicity (identification of a child or restriction on publication), radicalisation cases, applications for medical treatment, and applications relating to non-Hague convention countries.

Put simply, if the remedy appears in the Schedule to the 2021 Guidance, the application for that remedy must not be commenced in the Family Court but rather in the High Court. For ease of reference, the Schedule to the 2021 Guidance is set out fully below:

As can be seen, the Schedule to the 2021 Guidance does not prohibit other forms of injunction, as applied for in Re K, from being made in the Family Court. The Family Court can issue a freestanding port alert order (A v B [2021] EWHC 1716 (Fam); [2021] 4 WLR 108) and has the power to issue geographic exclusion orders under its inherent jurisdiction (Re T (A Child) [2017] EWCA Civ 18).

The outcome of the appeal

Reflecting on the appeal in the case of Re K, applying the law as set out above, the Court of Appeal found that the judge did have the power to make the injunction. The Schedule to the 2014 Rules did not preclude a circuit judge from making the order sought, and the application did not fall within parts A or B of the Schedule to the 2021 Guidance (as it was not an exercise of power equivalent to the High Court’s substantive inherent jurisdiction relating to children), but rather an incidental order in support of a care order. Allowing the appeal, the Court remitted the application for substantive determination.

Implications for practice

The President’s judgment has not changed the legal framework within which family practitioners, judges, and magistrates operate. However, it serves as a reminder of the wide and flexible powers available to the Family Court, regardless of whether a hearing is presided over by a circuit judge with section 9 authorisation or by a bench of lay magistrates.

When issues of jurisdiction arise, the key questions that must be asked are:

a. Are these properly issued family proceedings?

b. Is the order sought one that is incidental or supplemental to the substantive orders that are sought in the proceedings?

c. Is the remedy one that is reserved for a higher level of judge by the Schedules to the Rules or by the 2014 Guidance (and the two relevant schedules)?

d. Is the application one that is reserved to the High Court by the Rules or by the 2021 Guidance?

If the answer to the first two questions is 'yes' and to the other two questions is ‘no,’ the power to make the order exists. Whether an order should be made will depend upon an assessment of welfare and fairness and, insofar as the Convention rights of others are affected, considerations of necessity and proportionality.

It is evident that the critical words will be “incidental or supplemental” to the substantive orders. The Court did not offer additional guidance on what amounts to an “incidental or supplemental” and what does not. That is hardly surprising. Applying the dictionary definition of those words and considering the facts of Re K, it would seem that the definition is deliberately wide.

What does that mean in practice? As always, it will turn on the specific facts of each case. As in the US Supreme Court case of Jacobellis v. Ohio 378 U.S. 184 (1964) (but in a very, very different context), “…I know it when I see it”. If the relief sought is the scaffolding around the building under construction, that is very different to being the central structural core of the edifice. That distinction should be clear to the experienced practitioner.

Whether the power extends to interim orders or matters issued on an urgent basis remains to be seen. It is likely that there will be future published decisions touching on this issue and it remains an area to watch in 2025.

Of course, it is always open for judges and magistrates to transfer a specific case to a higher level within the Family Court where there is a pressing reason to do so. The 2014 Guidance continues to offer important direction on allocation, which this judgment does not interfere with. Where the issues and complexity within a case demand reallocation in accordance with the public law or private law schedules, an application should be made. This new judgment simply reminds practitioners that additional delay can be avoided and judicial continuity maintained, as incidental orders can be sought from the tribunal already dealing with the substantive application, which must surely be within the best interests of the children who find themselves subject to the applications.

Local authorities and children’s guardians should feel empowered to make any necessary application to bolster their final care plans or positions, knowing that in doing so, their application for those incidental orders will not inject additional delay, and the final hearing need not be re-allocated to a higher level of judge within the Family Court.

Matthew Maynard and Thomas Duggan are barristers at St Ives Chambers.