31H Contempt of court: power to limit court's powers
(1) The Lord Chancellor may by regulations made after consulting the Lord Chief Justice make provision limiting or removing, in circumstances specified in the regulations, any of the powers exercisable by the family court when dealing with a person for contempt of court.
(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise functions of the Lord Chief Justice under this section.
31I Powers of the High Court in respect of family court proceedings
(1) If the High Court, at any stage in proceedings in the family court, thinks it desirable that the proceedings, or any part of them, should be transferred to the High Court, it may order the transfer to the High Court of the proceedings or part.
(2) The power given by subsection (1) is without prejudice to section 29 of the Senior Courts Act 1981, and is to be exercised—
(a) in accordance with any directions given as to the distribution or transfer of proceedings, and
(b) subject to any provision made under section 1 of the Courts and Legal Services Act 1990 or made by or under any other enactment.
31J Overview of certain powers of the court under other Acts
The powers of the family court include its powers under—
(a) section 33 of the Senior Courts Act 1981 (powers exercisable before commencement of action);
(b) section 34 of that Act (power to order disclosure or inspection of documents or property of non-party);
(c) section 37 of that Act (power to grant injunction or appoint receiver);
(d) section 39 of that Act (power to order documents to be executed or indorsed by nominated person);
(e) section 70(1) and (2) of that Act (assessors);
(f) section 57 of the County Courts Act 1984 (evidence of prisoners);
(g) section 71 of that Act (powers as to payment of costs).
(1) Subject to any order made under section 56(1) of the Access to Justice Act 1999 (power to provide for appeals to be made instead to the High Court or county court, or to the family court itself), if any party to any proceedings in the family court is dissatisfied with the decision of the court, that party may appeal from it to the Court of Appeal in such manner and subject to such conditions as may be provided by Family Procedure Rules.
(2) Subsection (1) does not—
(a) confer any right of appeal from any decision where a right of appeal is conferred by some other enactment, or
(b) take away any right of appeal from any decision where a right of appeal is so conferred,
and has effect subject to any enactment other than this Part; and in this subsection “enactment” means an enactment whenever passed.
(3) The Lord Chancellor may, after consulting the Lord Chief Justice, by order make provision as to the circumstances in which appeals may be made against decisions taken by courts or judges on questions arising in connection with the transfer, or proposed transfer, of proceedings from or to the family court.
(4) Except to the extent provided for in any order made under subsection (3), no appeal may be made against any decision of a kind mentioned in that subsection.
(5) At the hearing of any proceedings in the family court in which there is a right of appeal or from which an appeal may be brought with permission, the judge, if requested to do so by any party, is to make a note—
(a) of any question of law raised at the hearing,
(b) of the facts in evidence in relation to any such question, and
(c) of the court's decision on any such question and of the court's determination of the proceedings.
(6) Where such a note is made, and whether or not an appeal has been made, the court—
(a) on the application of any party to the proceedings, and
(b) on payment of the fee (if any) prescribed under section 92 of the Courts Act 2003,
is to provide that party with a copy of the note signed by the judge, and the copy so signed is to be used at the hearing of any appeal.
(7) Section 81 of the County Courts Act 1984 (powers of Court of Appeal on appeal from county court) applies to appeals from the family court to the Court of Appeal as it applies to appeals from the county court to the Court of Appeal.
(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise functions of the Lord Chief Justice under subsection (3).
(1) Payment of a fine or penalty imposed by the family court may be enforced upon the order of the court in like manner as a judgment of the court for the payment of money.
(2) Rules of court may, in relation to cases where under two or more orders made by or registered in the family court the same person is required to make periodical payments to the same recipient, make provision—
(a) for recovery of payments under more than one of the orders to be dealt with in the same proceedings;
(b) for apportioning, between some or all of the orders, payments made by the person required to make payments under the orders.
(3) Subsection (4) applies where—
(a) periodical payments are required to be made, or a lump sum is required to be paid, to a child under an order made by the family court, or
(b) periodical payments are required to be made to a child under an order registered in the family court.
(4) Any sum required under the order to be paid to the child may be paid to the person who looks after the child, and that person may proceed in that person's own name for—
(a) the variation, revival or revocation of the order, or
(b) the recovery of any sum required to be paid under the order.
(5) Where a child has a right under any Act or instrument made under an Act to apply for the revival of an order made by the family court which provided for the making of periodical payments to or for the benefit of the child, the person who looks after the child may proceed in the person's own name for the revival of the order.
(6) Where any person by whom periodical payments are required to be paid to a child under an order made by or registered in the family court applies for the variation or revocation of the order, the person who looks after the child may answer the application in the person's own name.
(7) Nothing in subsections (4) and (5) affects any right of a child to proceed in the child's own name for the variation, revival or revocation of an order or for the recovery of a sum payable under an order.
(8) In this section—
(a) a reference to the person who looks after a child is—
(i) in the case of a child who is being looked after by a local authority (within the meaning of section 22 of the Children Act 1989 or section 74 of the Social Services and Well-being (Wales) Act 2014), a reference to that local authority, and
(ii) in any other case, a reference to the person who, disregarding any absence of the child at a hospital or boarding school and any other temporary absence, has care of the child;
(b) “child” means a person under the age of 18;
(c) a reference to an order registered in the family court is a reference to an order registered in the court under the Maintenance Orders (Facilities for Enforcement) Act 1920, Part 2 of the Maintenance Orders Act 1950, Part 1 of the Maintenance Orders Act 1958 or the Maintenance Orders (Reciprocal Enforcement) Act 1972 ....
(1) The Lord Chancellor may by regulations provide for the keeping of records of and in relation to proceedings of the family court.
(2) Any entry in a book or other document required to be kept by regulations under subsection (1), or a copy of any such entry or document purporting to be signed and certified as a true copy by a judge of the family court, is at all times without further proof to be admitted in any court or place as evidence of the entry and of the proceeding referred to by it and of the regularity of that proceeding.
(3) The Lord Chancellor must consult the Lord Chief Justice before making regulations under this section.
(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise functions of the Lord Chief Justice under this section.
(1) Where any summons or other process issued from the family court is served by an officer of the court, the service may be proved by a certificate in a prescribed form showing the fact and mode of the service.
(2) Section 133(2) of the County Courts Act 1984 (offence and punishment) applies in relation to any officer of the family court wilfully and corruptly giving a false certificate under subsection (1) as it applies in relation to any officer of the county court wilfully and corruptly giving a false certificate under section 133(1) of that Act.
(3) Sections 135 and 136 of that Act (offences of pretending to have court's authority etc) apply in relation to the family court as they apply in relation to the county court.
(1) The Lord Chief Justice may authorise a person—
(a) to give advice to judges of the family court about matters of law (including procedure and practice) on questions arising in connection with the discharge by them of functions conferred on them or the court, including questions arising when the person is not personally attending on them, and
(b) to bring to the attention of judges of the family court, at any time when the person thinks appropriate, any point of law (including procedure and practice) that is or may be involved in any question so arising.
(2) The Lord Chief Justice may authorise a person under subsection (1) only if the person—
(a) is appointed under section 2(1) of the Courts Act 2003 or section 40(1) of the Tribunals, Courts and Enforcement Act 2007, and
(b) has such qualifications as may be prescribed by regulations made by the Lord Chancellor with the agreement of the Lord Chief Justice.
(3) An authorisation under subsection (1)—
(a) may be subject to conditions, and
(b) may be varied or revoked by the Lord Chief Justice at any time.
(4) The Lord Chief Justice may give directions to a person authorised to exercise functions under subsection (1).
(5) Apart from such directions, a person authorised to exercise functions under subsection (1) is not subject to the direction of the Lord Chancellor or any other person when exercising the functions.
(6) The Lord Chief Justice may nominate one or more of the following to exercise the Lord Chief Justice's functions under the preceding provisions of this section—
(a) a judicial office holder;
(b) a person appointed under section 2(1) of the Courts Act 2003 or section 40(1) of the Tribunals, Courts and Enforcement Act 2007.
(7) A person nominated under subsection (6)(b) to exercise functions of the Lord Chief Justice is not subject to the direction of any person other than—
(a) the Lord Chief Justice, or
(b) a judicial office holder nominated by the Lord Chief Justice,
when exercising the functions.
(8) In this section “judicial office holder” has the meaning given by section 109(4) of the Constitutional Reform Act 2005.
(1) Any power of the Lord Chancellor to make an order, regulations or rules under this Part—
(a) is exercisable by statutory instrument,
(b) includes power to make different provision for different purposes, and
(c) includes power to make supplementary, incidental, consequential, transitional, transitory or saving provision.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) A statutory instrument that—
(a) contains an order, regulations or rules made under this Part by the Lord Chancellor other than regulations under section 31M, and
(b) is not subject to any requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament,
is subject to annulment in pursuance of a resolution of either House of Parliament.
31Q Prohibition of cross-examination in person: introductory
In this Part—
“family proceedings” means—
proceedings in the family court,
proceedings in the Family Division of the High Court which are business assigned, by or under section 61 of (and Schedule 1 to) the Senior Courts Act 1981, to that Division of the High Court and no other, and
proceedings in the civil division of the Court of Appeal arising out of proceedings within paragraph (a) or (b);
“witness”, in relation to any proceedings, includes a party to the proceedings.
31R Prohibition of cross-examination in person: victims of offences
(1) In family proceedings, no party to the proceedings who has been convicted of or given a caution for, or is charged with, a specified offence may cross-examine in person a witness who is the victim, or alleged victim, of that offence.
(2) In family proceedings, no party to the proceedings who is the victim, or alleged victim, of a specified offence may cross-examine in person a witness who has been convicted of or given a caution for, or is charged with, that offence.
(3) Subsections (1) and (2) do not apply to a conviction or caution that is spent for the purposes of the Rehabilitation of Offenders Act 1974, unless evidence in relation to the conviction or caution is admissible in, or may be required in, the proceedings by virtue of section 7(2), (3) or (4) of that Act.
(4) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the conviction, caution or charge when the cross-examination took place.
(5) In this section—
“caution” means—
in the case of England and Wales—
a conditional caution given under section 22 of the Criminal Justice Act 2003,
a youth conditional caution given under section 66A of the Crime and Disorder Act 1998, or
any other caution given to a person in England and Wales in respect of an offence which, at the time the caution is given, the person has admitted;
in the case of Scotland, anything corresponding to a caution falling within paragraph (a) (however described) which is given to a person in respect of an offence under the law of Scotland;
in the case of Northern Ireland—
a conditional caution given under section 71 of the Justice Act (Northern Ireland) 2011, or
any other caution given to a person in Northern Ireland in respect of an offence which, at the time the caution is given, the person has admitted;
“conviction” means—
a conviction by or before a court in England and Wales, Scotland or Northern Ireland;
a conviction in service disciplinary proceedings (in England and Wales, Scotland, Northern Ireland, or elsewhere), including—
in the case of proceedings in respect of a service offence, anything that under section 376(1) and (2) of the Armed Forces Act 2006 (which relates to summary hearings and the Summary Appeal Court) is to be treated as a conviction for the purposes of that Act, and
in the case of any other service disciplinary proceedings, a finding of guilt in those proceedings;
a finding in any criminal proceedings (including a finding linked with a finding of insanity) that the person concerned has committed an offence or done the act or made the omission charged;
and “convicted” is to be read accordingly;
“service disciplinary proceedings” means—
any proceedings (whether or not before a court) in respect of a service offence (except proceedings before a civilian court within the meaning of the Armed Forces Act 2006);
any proceedings under the Army Act 1955, the Air Force Act 1955, or the Naval Discipline Act 1957 (whether before a court-martial or before any other court or person authorised under any of those Acts to award a punishment in respect of an offence);
any proceedings before a Standing Civilian Court established under the Armed Forces Act 1976;
“service offence” means—
a service offence within the meaning of the Armed Forces Act 2006, or
an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);
“specified offence” means an offence which is specified, or of a description specified, in regulations made by the Lord Chancellor.
(6) The following provisions (which deem a conviction of a person discharged not to be a conviction) do not apply for the purposes of this section to a conviction of a person for an offence in respect of which an order has been made discharging the person absolutely or conditionally—
(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000;
(b) section 82 of the Sentencing Code;
(c) section 187 of the Armed Forces Act 2006 or any corresponding earlier enactment.
(7) For the purposes of this section “offence” includes an offence under a law that is no longer in force.
31S Prohibition of cross-examination in person: persons protected by injunctions etc
(1) In family proceedings, no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction.
(2) In family proceedings, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force.
(3) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the protective injunction when the cross-examination took place.
(4) In this section “protective injunction” means an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor.
(5) For the purposes of this section, a protective injunction is an “on-notice” protective injunction if—
(a) the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied, or
(b) the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.
31T Prohibition of cross-examination in person: evidence of domestic abuse
(1) In family proceedings, where specified evidence is adduced that a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party to the proceedings may not cross-examine the witness in person.
(2) In family proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by a witness, that party may not cross-examine the witness in person.
(3) In this section—
“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;
“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.
(4) Regulations under subsection (3) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.
31U Direction for prohibition of cross-examination in person: other cases
(1) In family proceedings, the court may give a direction prohibiting a party to the proceedings from cross-examining (or continuing to cross-examine) a witness in person if—
(a) none of sections 31R to 31T operates to prevent the party from cross-examining the witness, and
(b) it appears to the court that—
(i) the quality condition or the significant distress condition is met, and
(ii) it would not be contrary to the interests of justice to give the direction.
(2) The “quality condition” is met if the quality of evidence given by the witness on cross-examination—
(a) is likely to be diminished if the cross-examination (or continued cross-examination) is conducted by the party in person, and
(b) would be likely to be improved if a direction were given under this section.
(3) The “significant distress condition” is met if—
(a) the cross-examination (or continued cross-examination) of the witness by the party in person would be likely to cause significant distress to the witness or the party, and
(b) that distress is likely to be more significant than would be the case if the witness were cross-examined other than by the party in person.
(4) A direction under this section may be made by the court—
(a) on an application made by a party to the proceedings, or
(b) of its own motion.
(5) In determining whether the quality condition or the significant distress condition is met in the case of a witness or party, the court must have regard to, among other things—
(a) any views expressed by the witness as to whether or not the witness is content to be cross-examined by the party in person;
(b) any views expressed by the party as to whether or not the party is content to cross-examine the witness in person;
(c) the nature of the questions likely to be asked, having regard to the issues in the proceedings;
(d) any behaviour by the party in relation to the witness in respect of which the court is aware that a finding of fact has been made in the proceedings or in any other proceedings;
(e) any behaviour by the witness in relation to the party in respect of which the court is aware that a finding of fact has been made in the proceedings or in any other proceedings;
(f) any behaviour by the party at any stage of the proceedings, both generally and in relation to the witness;
(g) any behaviour by the witness at any stage of the proceedings, both generally and in relation to the party;
(h) any relationship (of whatever nature) between the witness and the party.
(6) Any reference in this section to the quality of a witness's evidence is to its quality in terms of completeness, coherence and accuracy.
(7) For this purpose “coherence” refers to a witness's ability in giving evidence to give answers which—
(a) address the questions put to the witness, and
(b) can be understood, both individually and collectively.
(1) A direction under section 31U has binding effect from the time it is made until the witness in relation to whom it applies is discharged.
(2) But the court may revoke a direction under section 31U before the witness is discharged, if it appears to the court to be in the interests of justice to do so, either—
(a) on an application made by a party to the proceedings, or
(b) of its own motion.
(3) The court may revoke a direction under section 31U on an application made by a party to the proceedings only if there has been a material change of circumstances since—
(a) the direction was given, or
(b) if a previous application has been made by a party to the proceedings, the application (or the last application) was determined.
(4) The court must state its reasons for—
(a) giving a direction under section 31U;
(b) refusing an application for a direction under section 31U;
(c) revoking a direction under section 31U;
(d) refusing an application for the revocation of a direction under section 31U.
(1) This section applies where a party to family proceedings is prevented from cross-examining a witness in person by virtue of any of sections 31R to 31U.
(2) The court must consider whether (ignoring this section) there is a satisfactory alternative means—
(a) for the witness to be cross-examined in the proceedings, or
(b) of obtaining evidence that the witness might have given under cross-examination in the proceedings.
(3) If the court decides that there is not, the court must—
(a) invite the party to the proceedings to arrange for a qualified legal representative to act for the party for the purpose of cross-examining the witness, and
(b) require the party to the proceedings to notify the court, by the end of a period specified by the court, of whether a qualified legal representative is to act for the party for that purpose.
(4) Subsection (5) applies if, by the end of the period specified under subsection (3)(b), either—
(a) the party has notified the court that no qualified legal representative is to act for the party for the purpose of cross-examining the witness, or
(b) no notification has been received by the court and it appears to the court that no qualified legal representative is to act for the party for the purpose of cross-examining the witness.
(5) The court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a qualified legal representative appointed by the court to represent the interests of the party.
(6) If the court decides that it is, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the party.
(7) A qualified legal representative appointed by the court under subsection (6) is not responsible to the party.
(8) For the purposes of this section—
(a) a reference to cross-examination includes a reference to continuing to conduct cross-examination;
(b) “qualified legal representative” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience (within the meaning of that Act) in family proceedings.
31X Costs of legal representatives appointed under section 31W(6)
(1) The Lord Chancellor may by regulations make provision for the payment out of central funds of sums in respect of—
(a) fees or costs properly incurred by a qualified legal representative appointed under section 31W(6), and
(b) expenses properly incurred in providing such a person with evidence or other material in connection with the appointment.
(2) The regulations may provide for sums payable under subsection (1) to be determined by the Lord Chancellor or such other person as the regulations may specify.
(3) The regulations may provide for sums payable under subsection (1)—
(a) to be such amounts as are specified in the regulations;
(b) to be calculated in accordance with—
(i) a rate or scale specified in the regulations, or
(ii) other provision made by or under the regulations.
31Y Guidance for legal representatives appointed under section 31W(6)
(1) The Lord Chancellor may issue guidance in connection with the role which a qualified legal representative appointed under section 31W(6) in connection with any family proceedings is to play in the proceedings, including (among other things) guidance about the effect of section 31W(7).
(2) A qualified legal representative appointed under section 31W(6) must have regard to any guidance issued under this section.
(3) The Lord Chancellor may from time to time revise any guidance issued under this section.
(4) The Lord Chancellor must publish—
(a) any guidance issued under this section, and
(b) any revisions of that guidance.
(1) Any power of the Lord Chancellor to make regulations under this Part—
(a) is exercisable by statutory instrument,
(b) includes power to make different provision for different purposes, and
(c) includes power to make supplementary, incidental, consequential, transitional, transitory or saving provision.
(2) A statutory instrument containing regulations under this Part is subject to annulment in pursuance of a resolution of either House of Parliament.
In this Part of this Act—
“family business” means business of any description which in the High Court is for the time being assigned to the Family Division and to no other Division by or under section 61 of (and Schedule 1 to) the Senior Courts Act 1981;
“family proceedings” means proceedings which are family business;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“matrimonial cause” means an action for divorce, nullity or marriage, or judicial separation;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
37 Directions as to distribution and transfer of family business and proceedings.
The President of the Family Division may, with the concurrence of the Lord Chancellor, give directions with respect to the distribution and transfer between the High Court and the family court of family business and family proceedings.
38 Transfer of family proceedings from High Court ....
(1) At any stage in any family proceedings in the High Court the High Court may, if the proceedings are transferable under this section, either of its own motion or on the application of any party to the proceedings, order the transfer of the whole or any part of the proceedings to the family court.
(2) The following family proceedings are transferable to the family court under this section, namely—
(a) all family proceedings commenced in the High Court which are within the jurisdiction of the family court;
(b) wardship proceedings, except applications for an order that a minor be made, or cease to be, a ward of court or any other proceedings which relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; and
(c) all family proceedings transferred ... to the High Court under section 39 below or section 41 of the County Courts Act 1984 (transfer to High Court by order of High Court); and
(d) all matrimonial causes and matters transferred from the family court or a county court otherwise than as mentioned in paragraph (c) above.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) The transfer shall not affect any right of appeal from the order directing the transfer, or the right to enforce in the High Court any judgment signed, or order made, in that Court before the transfer.
(5) Where proceedings are transferred to the family court under this section, the family court—
(a) if it has no jurisdiction apart from this paragraph, shall have jurisdiction to hear and determine those proceedings;
(b) shall have jurisdiction to award any relief which could have been awarded by the High Court.
39 Transfer of family proceedings to High Court ....
(1) At any stage in any family proceedings in the family court, the family court may, if the proceedings are transferable under this section, either of its own motion or on the application of any party to the proceedings, order the transfer of the whole or any part of the proceedings to the High Court.
(2) The following family proceedings are transferable to the High Court under this section, namely—
(a) all family proceedings commenced in the family court which are within the jurisdiction of the High Court, and
(b) all family proceedings transferred from the High Court under section 38 above.
43 Distribution of business: proceedings under s. 17 of Married Women’s Property Act 1882.
In section 17 of the Married Women’s Property Act 1882 (which provides for the summary determination of property disputes between spouses and, as extended, former spouses and former engaged couples) for the words after “in a summary way” there shall be substituted the words
to the High Court or such county court as may be prescribed and the court may, on such an application (which may be heard in private), make such order with respect to the property as it thinks fit.
In this section “prescribed” means prescribed by rules of court and rules made for the purposes of this section may confer jurisdiction on county courts whatever the situation or value of the property in dispute.
.
46 Amendments, transitional provisions and repeals.
(1) The enactments specified in Schedule 1 to this Act shall have effect subject to the amendments specified in that Schedule, being amendments consequential on the provisions of this Act or minor amendments relating to the enforcement of maintenance orders, the area of jurisdiction of magistrates’ courts for purposes of altering maintenance agreements and the variation by magistrates’ courts of certain existing maintenance, affiliation and other orders.
(2) The transitional provisions contained in Schedule 2 to this Act shall have effect.
(3) The enactments specified in Schedule 3 to this Act (which include some which are spent) are hereby repealed to the extent specified in the third column of that Schedule.