The Children (Allocation of Proceedings) Order 1991

Citation, commencement and interpretation

1.—(1) This Order may be cited as the Children (Allocation of Proceedings) Order 1991 and shall come into force on 14th October 1991.

(2) In this Order, unless the context otherwise requires–

“child”–

(a) means, subject to sub-paragraph (b), a person under the age of 18 with respect to whom proceedings are brought, and

(b) where the proceedings are under Schedule 1, also includes a person who has reached the age of 18;

• “London commission area” has the meaning assigned to it by section 2(1) of the Justices of the Peace Act 1979(1);

• “petty sessions area” has the meaning assigned to it by section 4 of the Justices of the Peace Act 1979(2);and

• “the Act” means the Children Act 1989, and a section, Part or Schedule referred to by number alone means the section, Part or Schedule so numbered in that Act.

Classes of county court

2.  For the purposes of this Order there shall be the following classes of county court:

(a) divorce county courts, being those courts designated for the time being as divorce county courts by an order under section 33 of the Matrimonial and Family Proceedings Act 1984(3);

(b) family hearing centres, being those courts set out in Schedule 1 to this Order;

(c) care centres, being those courts set out in column (ii) of Schedule 2 to this Order.

COMMENCEMENT OF PROCEEDINGS

Proceedings to be commenced in magistrates' court

3.—(1) Subject to paragraphs (2) and (3) and to article 4, proceedings under any of the following provisions shall be commenced in a magistrates' court:

(a) section 25 (use of accommodation for restricting liberty);

(b) section 31 (care and supervision orders);

(c) section 33(7) (leave to change name of or remove from United Kingdom child in care);

(d) section 34 (parental contact);

(e) section 36 (education supervision orders);

(f) section 43 (child assessment orders);

(g) section 44 (emergency protection orders);

(h) section 45 (duration of emergency protection orders etc.);

(i) section 46(7) (application for emergency protection order by police officer);

(j) section 48 (powers to assist discovery of children etc.);

(k) section 50 (recovery orders);

(l) section 75 (protection of children in an emergency);

(m) section 77(6) (appeal against steps taken under section 77(1));

(n) section 102 (powers of constable to assist etc.);

(o) paragraph 19 of Schedule 2 (approval of arrangements to assist child to live abroad);

(p) paragraph 23 of Schedule 2 (contribution orders);

(q) paragraph 8 of Schedule 8 (certain appeals);

(r) section 21 of the Adoption Act 1976(4).

(2) Notwithstanding paragraph (l) and subject to paragraph (3), proceedings of a kind set out in sub-paragraph (b), (e), (f), (g), (i) or (j) of paragraph (1), and which arise out of an investigation directed, by the High Court or a county court, under section 37(1), shall be commenced—

(a) in the court which directs the investigation, where that court is the High Court or a care centre, or

(b) in such care centre as the court which directs the investigation may order.

(3) Notwithstanding paragraphs (l) and (2), proceedings of a kind set out in subparagraph (a) to (k), (n) or (o) of paragraph (l) shall be made to a court in which are pending other proceedings, in respect of the same child, which are also of a kind set out in those sub-paragraphs.

Application to extend, vary or discharge order

4.—(1) Subject to paragraphs (2) and (3), proceedings under the Act, or under the Adoption Act 1976–

(a) to extend, vary or discharge an order, or

(b) the determination of which may have the effect of varying or discharging an order,

shall be made to the court which made the order.

(2) Notwithstanding paragraph (1), an application for an order under section 8 which would have the effect of varying or discharging an order made, by a county court, in accordance with section 10(l)(b) shall be made to a divorce county court.

(3) Notwithstanding paragraph (1), an application to extend, vary or discharge an order made, by a county court, under section 38, or for an order which would have the effect of extending, varying or discharging such an order, shall be made to a care centre.

(4) A court may transfer proceedings made in accordance with paragraph (l) to any other court in accordance with the provisions of articles 5 to 13.

TRANSFER OF PROCEEDINGS

Disapplication of enactments about transfer

5.  Sections 38 and 39 of the Matrimonial and Family Proceedings Act 1984(3) shall not apply to proceedings under the Act or under the Adoption Act 1976.

Transfer from one magistrates' court to another

6.  A magistrates' court (the “transferring court”) shall transfer proceedings under the Act or under the Adoption Act 1976 to another magistrates' court (the “receiving court”) where–

(a) having regard to the principle set out in section 1(2), the transferring court considers that the transfer is in the interests of the child–

(i) because it is likely significantly to accelerate the determination of the proceedings,

(ii) because it would be appropriate for those proceedings to be heard together with other family proceedings which are pending in the receiving court, or

(iii) for some other reason, and

(b) the receiving court, by its justices' clerk (as defined by rule 1(2) of the Family Proceedings Courts (Children Act 1989) Rules 1991(5)), consents to the transfer.

Transfer from magistrates' court to county court by magistrates' court

7.—(1) Subject to paragraphs (2), (3) and (4) and to articles 15 to 18, a magistrates" court may, upon application by a party or of its own motion, transfer to a county court proceedings of any of the kinds mentioned in article 3(1) where it considers it in the interests of the child to do so having regard, first, to the principle set out in section 1(2) and, secondly, to the following questions:

(a) whether the proceedings are exceptionally grave, important or complex, in particular–

(i) because of complicated or conflicting evidence about the risks involved to the child"s physical or moral well-being or about other matters relating to the welfare of the child;

(ii) because of the number of parties;

(iii) because of a conflict with the law of another jurisdiction;

(iv) because of some novel and difficult point of law; or

(v) because of some question of general public interest;

(b) whether it would be appropriate for those proceedings to be heard together with other family proceedings which are pending in another court; and

(c) whether transfer is likely significantly to accelerate the determination of the proceedings, where–

(i) no other method of doing so, including transfer to another magistrates' court, is appropriate, and

(ii) delay would seriously prejudice the interests of the child who is the subject of the proceedings.

(2) Notwithstanding paragraph (1), proceedings of the kind mentioned in subparagraph (g) to (j), (1), (m), (p) or (q) of article 3(1) shall not be transferred from a magistrates' court.

(3) Notwithstanding paragraph (1), proceedings of the kind mentioned in subparagraph (a) or (n) of article 3(1) shall only be transferred from a magistrates'court to a county court in order to be heard together with other family proceedings which arise out of the same circumstances as gave rise to the proceedings to be transferred and which are pending in another court.

(4) Notwithstanding paragraphs (1) and (3), proceedings of the kind mentioned in article 3(1)(a) shall not be transferred from a magistrates' court which is not a family proceedings court within the meaning of section 92(1).

8.  Subject to articles 15 to 18, a magistrates" court may transfer to a county court proceedings under the Act or under the Adoption Act 1976, being proceedings to which article 7 does not apply, where, having regard to the principle set out in section 1(2), it considers that in the interests of the child the proceedings can be dealt with more appropriately in that county court.

Transfer from magistrates' court following refusal of magistrates' court to transfer

9.—(1) Where a magistrates' court refuses to transfer proceedings under article 7, a party to those proceedings may apply to the care centre listed in column (ii) of Schedule 2 to this Order against the entry in column (i) for the petty sessions area or London commission area in which the magistrates' court is situated for an order under paragraph (2).

(2) Upon hearing an application under paragraph (l) the court may transfer the proceedings to itself where, having regard to the principle set out in section 1(2) and the questions set out in article 7(1)(a) to (c), it considers it in the interests of the child to do so.

(3) Upon hearing an application under paragraph (l) the court may transfer the proceedings to the High Court where, having regard to the principle set out in section 1(2), it considers–

(a) that the proceedings are appropriate for determination in the High Court, and

(b) that such determination would be in the interests of the child.

Transfer from one county court to another

10.  Subject to articles 15 to 17, a county court (the “transferring court”) shall transfer proceedings under the Act or under the Adoption Act 1976 to another county court (the “receiving court”) where–

(a) the transferring court, having regard to the principle set out in section 1(2), considers the transfer to be in the interests of the child, and

(b) the receiving court is–

(i) of the same class or classes, within the meaning of article 2, as the transferring court, or

(ii) to be presided over by a judge or district judge who is specified by directions under section 9 of the Courts and Legal Services Act 1990(6) for the same purposes as the judge or district judge presiding over the transferring court.

Transfer from county court to magistrates' court by county court

11.  A county court may transfer to a magistrates" court before trial proceedings which were transferred under article 7(1) where the county court, having regard to the principle set out in section 1(2) and the interests of the child, considers that the criterion cited by the magistrates' court as the reason for transfer–

(a) in the case of the criterion in article 7(1)(a), does not apply,

(b) in the case of the criterion in article 7(1)(b), no longer applies, because the proceedings with which the transferred proceedings were to be heard have been determined,

(c) in the case of the criterion in article 7(1)(c), no longer applies.

Transfer from county court to High Court by county court

12.  A county court may transfer proceedings under the Act or the Adoption Act 1976 to the High Court where, having regard to the principle set out in section 1(2), it considers–

(a) that the proceedings are appropriate for determination in the High Court, and

(b) that such determination would be in the interests of the child.

Transfer from High Court to county court

13.  Subject to articles 15, 16 and 18, the High Court may transfer to a county court proceedings under the Act or the Adoption Act 1976 where, having regard to the principle set out in section 1(2), it considers that the proceedings are appropriate for determination in such a court and that such determination would be in the interests of the child.

ALLOCATION OF PROCEEDINGS TO PARTICULAR COUNTY COURTS

Commencement

14.  Subject to articles 18, 19 and 20 and to rule 2.40 of the Family Proceedings Rules 1991(7) (Application under Part I or II of the Children Act 1989 where matrimonial cause is pending), an application under the Act or under the Adoption Act 1976 which is to be commenced in a county court shall be commenced in a divorce county court.

Proceedings under Part I or II or Schedule 1

15.—(2) Subject to paragraph (3), where an application under Part I or II or Schedule 1 is to be transferred from a magistrates" court to a county court, it shall be transferred to a divorce county court.

(2) Subject to paragraph (3), where an application under Part I or II or Schedule 1, other than an application for an order under section 8, is to be transferred from the High Court to a county court, it shall be transferred to a divorce county court.

(3) Where an application under Part I or II or Schedule 1, other than an application for an order under section 8, is to be transferred to a county court for the purpose of consolidation with other proceedings, it shall be transferred to the court in which those other proceedings are pending.

Orders under section 8 of the Children Act 1989

16.—(1) An application for an order under section 8 in a divorce county court, which is not also a family hearing centre, shall, if the court is notified that the application will be opposed, be transferred for trial to a family hearing centre.

(2) Subject to paragraph (3), where an application for an order under section 8 is to be transferred from the High Court to a county court it shall be transferred to a family hearing centre.

(3) Where an application for an order under section 8 is to be transferred to a county court for the purpose of consolidation with other proceedings, it may be transferred to the court in which those other proceedings are pending whether or not it is a family hearing centre; but paragraph (l) shall apply to the application following the transfer.

Application for adoption or freeing for adoption

17.—(1) Subject to article 22, proceedings in a divorce county court, which is not also a family hearing centre, under section 12 or 18 of the Adoption Act 1976(8) shall, if the court is notified that the proceedings will be opposed, be transferred for trial to a family hearing centre.

(2) Where proceedings under the Adoption Act 1976 are to be transferred from a magistrates' court to a county court, they shall be transferred to a divorce county court.

Applications under Part III, IV or V

18.—(1) An application under Part III, IV or V, if it is to be commenced in a county court, shall be commenced in a care centre.

(2) An application under Part III, IV or V which is to be transferred from the High Court to a county court shall be transferred to a care centre.

(3) An application under Part III, IV or V which is to be transferred from a magistrates" court to a county court shall be transferred to the care centre listed against the entry in column (i) of Schedule 2 to this Order for the petty sessions area or London commission area in which the relevant magistrates' court is situated.

Principal Registry of the Family Division

19.  The principal registry of the Family Division of the High Court shall be treated, for the purposes of this Order, as if it were a divorce county court, a family hearing centre and a care centre listed against every entry in column (i) of Schedule 2 to this Order (in addition to the entries against which it is actually listed).

Lambeth and Woolwich County Courts

20.  Notwithstanding articles 14, 16 and 17, an application for an order under section 8 or under the Adoption Act 1976 may be commenced and tried in Lambeth County Court or in Woolwich County Court.

MISCELLANEOUS

Contravention of provision of this Order

21.  Where proceedings are commenced or transferred in contravention of a provision of this Order, the contravention shall not have the effect of making the proceedings invalid; and no appeal shall lie against the determination of proceedings on the basis of such contravention alone.

Transitional provision – proceedings under Adoption Act 1976

22.  Proceedings under the Adoption Act 1976 which are commenced in a county court prior to the coming into force of this Order may, notwithstanding article 17(1), remain in that court for trial.

Mackay of Clashfern, C.

20th June 1991