THE FAMILY COURT IS NOT THE HIGH COURT: SEVEN YEARS ON AND THERE IS STILL CONFUSION: MOSTYN J RE-STATES THE POSITION

February 4, 2021 · by · in Case Management, Civil Procedure

I am treading, warily, in the patch of the family law bloggers in looking at the judgment of Mr Justice Mostyn in TK v ML [2021] EWFC.  This is a judgment about procedure that highlights the point that the Family Court is not to be confused with the High Court.

 

THE CASE

The judge was giving judgment in a case relating to jurisdiction.  He then observed that several of the orders made in the case referred to it being in the High Court.

THE FOOTNOTE TO THE JUDGMENT: THE FAMILY COURT IS NOT THE HIGH COURT

    1. Finally, and as a footnote, I raise a matter of procedure.
    2. The mother’s application of 11 September 2020 was correctly headed as being issued in the Family Court, as this is what FPR r.5.4 requires. However, there were five case management orders made after the application was issued and each of these orders stated on its face that it was made in the High Court. None of the first four orders provided for a transfer of the application to the High Court. Three of them were made by deputies who did not have the power to transfer a case to the High Court (see r.29.17 (3) and (4)). Each of these orders therefore contained an error as to which court the case was proceeding in. Each of those orders should have been headed “In the Family Court” and should have recorded that the application was proceeding in the Family Court at High Court judge level.
    3. The last case management order was made on 4 December 2020. It recorded in recital 10 that the mother’s application “proceeds in the Family Division rather than the Family Court because of the jurisdictional issue”. Recital 11 records that “if the jurisdictional issue is resolved in the mother’s favour, it may be appropriate to transfer the application to the Family Court in the appropriate local area”. Order 15 provides that “if the court concludes that it has jurisdiction to make the order is sought, it shall go on to consider case management including transfer to the Family Court”. Yet the order does not provide for a transfer of the application from the Family Court to the High Court pursuant to r.29.17.
    4. I mention these matters somewhat wearily, and I hope not too pedantically, because it is remarkable that nearly 7 years after the creation of the Family Court there is still a seemingly ineradicable belief that if a case deserves to be heard by a High Court judge then it has to be transferred to, or commenced in, the High Court itself. In his Guidance of 28 February 2018 (Jurisdiction of the Family Court) the then President painstakingly explained how High Court judges routinely sit in the Family Court to hear complex cases. He explained and directed that only the matters specified in Schedule A or B to the Guidance have to be heard in the High Court. This case is not one of them.
    5. It is important that I again emphasise strongly that the Family Court should be regarded as the sole, specialist court to deal with virtually all family litigation. I can do no better than to set out para 30 of the President’s Guidance:
“30. It is very important for the Family Court, which has now been in existence for nearly four years, to gain the respect it deserves as the sole, specialist, court to deal with virtually all family litigation. Except as specified in the Schedule to this Guidance, cases should only need to be heard in the High Court in very limited and exceptional circumstances.
(a) There is no justification for transferring a case from the Family Court to the High Court merely because it requires to be heard by a judge of the Family Division. The proper course is to re-allocate the case for hearing in the Family Court by a “judge of High Court level” or, if appropriate, a judge of the Family Division.
…
(c) There is no justification for transferring a case from the Family Court to the High Court merely because of some perceived complexity or difficulty. The proper course is to re-allocate the case for hearing in the Family Court by a “judge of High Court level” or, if appropriate, a judge of the Family Division.”
  1. I confirm, for the avoidance of any doubt, that I have heard this case in the Family Court. I treat the order of 4 December 2020 as saying that the preliminary jurisdictional issue shall be allocated to be heard within the Family Court at High Court judge level.
Tags: