The Allocation and Transfer of Proceedings Order 2008

PART 1 PRELIMINARY

Citation, commencement, interpretation and application

1.—(1) This Order may be cited as the Allocation and Transfer of Proceedings Order 2008 and, subject to paragraph (2), shall come into force on 25th November 2008.

(2) Articles 6(a)(i), 9(1) and 20(1), in so far as they apply to section 11J(6) or 11O(7) of, and paragraphs 4 to 7 and 9 of Schedule A1 to, the 1989 Act, shall come into force on the same day as sections 4 and 5 of the Children and Adoption Act 2006(1) come into force.

(3) In this Order—

“the 1989 Act” means the Children Act 1989a;

“the 1996 Act” means the Family Law Act 1996b;

“the 2002 Act” means the Adoption and Children Act 2002(2);

“Convention adoption order” means an adoption order under the 2002 Act which, by virtue of regulations under section 1 of the Adoption (Intercountry Aspects) Act 1999(3) (regulations giving effect to the Convention), is made as a Convention adoption order;

“proceedings” means, unless the context otherwise requires, proceedings under—

(a)

section 55A of the Family Law Act 1986(4) (declarations of parentage);

(b)

the 1989 Act;

(c)

section 20 of the Child Support Act 1991(5) (appeals);

(d)

section 30 of the Human Fertilisation and Embryology Act 1990(6) (parental orders);

(e)

Part 4 of the 1996 Act; and

(f)

the 2002 Act.

(4) The provisions in this Order apply unless any enactment or rule provides otherwise.

Classes of county court

2.  For the purposes of this Order there are the following classes of county court—

(a) family hearing centres, being those courts against which the word yes appears in column 2 of the table in Schedule 1;

(b) care centres, being those courts against which the word yes appears in column 3 of that table;

(c) adoption centres, being those courts against which the word yes appears in column 4 of that table;

(d) intercountry adoption centres, being those courts against which the word yes appears in column 5 of that table; and

(e) forced marriage county courts, being those courts against which the word yes appears in column 6 of that table.

Principal Registry of the Family Division

3.  The principal registry of the Family Division of the High Court is treated, for the purposes of this Order, as if it were—

(a) a family hearing centre;

(b) a care centre;

(c) an adoption centre;

(d) an intercountry adoption centre; and

(e) a forced marriage county court.

Contravention of a provision of this Order

4.  Where proceedings are started or transferred in contravention of a provision of this Order, the contravention does not have the effect of making the proceedings invalid.

PART 2 STARTING PROCEEDINGS

SECTION 1 STARTING PROCEEDINGS IN SPECIFIED LEVEL OF COURT

Proceedings which must be started in a magistrates’ court

5.—(1) Proceedings under the following provisions must be started in a magistrates’ court—

(a) section 79K of the 1989 Act (protection of children in an emergency);

(b) paragraph 23 of Schedule 2 to the 1989 Act (contribution order);

(c) paragraph 8 of Schedule 8 to the 1989 Act (certain appeals);

(d) section 23 of the 2002 Act (varying placement order);

(e) section 50 or 51 of the 2002 Act (adoption order), unless any local authority will be a party to the proceedings or article 6(c) or (d) applies;

(f) section 20 of the Child Support Act 1991 (appeals) where the proceedings are to be dealt with in accordance with the Child Support Appeals (Jurisdiction of Courts) Order 2002(7); and

(g) section 30 of the Human Fertilisation and Embryology Act 1990 (parental orders).

(2) Subject to paragraphs (3) and (4), proceedings under the following provisions must be started in a magistrates’ court—

(a) section 4 of the 1989 Act (acquisition of parental responsibility by father);

(b) section 4A of the 1989 Act (acquisition of parental responsibility by step-parent);

(c) section 25 of the 1989 Act (use of accommodation for restricting liberty);

(d) section 31 of the 1989 Act (care and supervision orders);

(e) section 33(7) of the 1989 Act (leave to change surname of, or remove from United Kingdom, child in care);

(f) section 34 of the 1989 Act (parental contact etc. with children in care);

(g) section 36 of the 1989 Act (education supervision orders);

(h) section 43 of the 1989 Act (child assessment orders);

(i) section 44 of the 1989 Act (emergency protection orders);

(j) section 45 of the 1989 Act (extension, variation or discharge of emergency protection order);

(k) section 46(7) of the 1989 Act (emergency protection order by police officer);

(l) section 48 of the 1989 Act (powers to assist in discovery of children etc.);

(m) section 50 of the 1989 Act (recovery orders);

(n) section 102 of the 1989 Act (warrant authorising a constable to assist in exercise of certain powers to search for children etc.); and

(o) paragraph 19 of Schedule 2 to the 1989 Act (approval of arrangements to assist child to live abroad).

(3) Proceedings to which paragraph (2) applies which—

(a) concern a child who is the subject of proceedings which are pending in a county court or the High Court; and

(b) arise out of the same circumstances as gave rise to those proceedings

may be started in the court in which those proceedings are pending.

(4) Proceedings under section 4 or 4A of the 1989 Act which are started at the same time as proceedings in a county court or the High Court for an order under section 8 of the 1989 Act (residence, contact and other applications in relation to children) in relation to the same child must be started in the court in which proceedings under section 8 are started.

Proceedings which must be started in a county court

6.  Subject to article 7, proceedings—

(a) brought by an applicant who is under the age of eighteen under—

(i) section 10(2)(b), 11J(6) or 11O(7) of, or paragraph 9(6) of Schedule A1 to, the 1989 Act (leave of the court to make an application); or

(ii) Part 4 of the 1996 Act;

(b) under section 43 of the 1996 Act (leave of the court for applications by children under sixteen);

(c) for a Convention adoption order; or

(d) for an adoption order under the 2002 Act where section 83 of that Act (restriction on bringing children in) applies,

must be started in a county court.

Proceedings which may be started in the High Court

7.  Subject to articles 5(3) and (4) and 8, proceedings may be started in the High Court only if—

(a) the proceedings are exceptionally complex;

(b) the outcome of the proceedings is important to the public in general; or

(c) there is another substantial reason for the proceedings to be started in the High Court.

Proceedings which must be started in the court where proceedings under the 2002 Act are pending

8.—(1) Where proceedings under section 50 or 51 of the 2002 Act (adoption order) are pending, proceedings concerning the same child under—

(a) section 29(4)(b) of the 2002 Act (leave to apply for a residence order);

(b) section 29(5)(b) of the 2002 Act (leave to apply for a special guardianship order);

(c) section 8 of the 1989 Act where section 28(1)(a) or 29(4)(b) of the 2002 Act applies (leave obtained to make application for a residence order);

(d) section 14A of the 1989 Act where section 28(1)(b) or 29(5)(b) of the 2002 Act applies (leave obtained to make application for a special guardianship order);

(e) section 37(a) of the 2002 Act (leave to remove the child); or

(f) section 47(3) or (5) of the 2002 Act (leave to oppose the making of an adoption order),

must be started in the court in which the proceedings under section 50 or 51 are pending.

(2) Where proceedings under section 22 of the 2002 Act (placement order) are pending, proceedings under section 30(2)(b) of that Act (leave to remove a child from accommodation provided by the local authority) must be started in the court in which the proceedings under section 22 are pending.

(3) Where proceedings under section 42(6) of the 2002 Act (leave to apply for an adoption order) are pending, proceedings under section 38(3)(a) or 40(2)(a) of that Act (leave to remove a child) must be started in the court in which the proceedings under section 42(6) are pending.

SECTION 2 STARTING PROCEEDINGS IN SPECIFIED CLASS OF COUNTY COURT

Starting proceedings under the 1989 Act

9.—(1) Subject to article 8(1)(c) and (d), proceedings under Part 1 or 2 of, or Schedule 1 or paragraphs 4 to 7 or 9 of Schedule A1 to, the 1989 Act which are to be started in a county court must be started in a family hearing centre.

(2) Proceedings under Part 3, 4 or 5 of the 1989 Act which are to be started in a county court must be started in a care centre.

Starting proceedings under Part 4A of the 1996 Act

10.—(1) Proceedings under Part 4A of the 1996 Act(8) which are to be started in a county court must be started in a forced marriage county court.

(2) Article 7 applies to proceedings under Part 4A of the 1996 Act as it applies to other proceedings.

Starting proceedings under the 2002 Act

11.—(1) Subject to paragraph (2), proceedings under the 2002 Act which are to be started in a county court must be started in an adoption centre.

(2) Proceedings for—

(a) a Convention adoption order; or

(b) an adoption order under the 2002 Act where section 83 of that Act applies

which are to be started in a county court must be started in an intercountry adoption centre.

PART 3 TRANSFER OF PROCEEDINGS

SECTION 1 GENERAL

Disapplication of enactments about transfer

12.  The proceedings to which this Order applies are excluded from the operation of sections 38 and 39 of the Matrimonial and Family Proceedings Act 1984 (transfer of family proceedings).

General rules about transfer of proceedings

13.—(1) When making any decision about the transfer of proceedings under articles 14, 15, 17 and 18 the court must have regard to the need to avoid delay in the proceedings.

(2) Articles 16 and 19 do not apply if the transfer of proceedings would cause the determination of the proceedings to be delayed.

(3) The transfer of proceedings under this Part may be made at any stage of the proceedings and whether or not the proceedings have already been transferred.

SECTION 2 TRANSFER OF PROCEEDINGS TO SPECIFIED LEVEL OF COURT

Transfer of proceedings from one magistrates’ court to another

14.  A magistrates’ court (the “transferring court”) may transfer proceedings to another magistrates’ court (the “receiving court”) only if the transferring court considers that—

(a) the transfer will significantly accelerate the determination of the proceedings;

(b) it is more convenient for the parties or for the child who is the subject of the proceedings for the proceedings to be dealt with by the receiving court; or

(c) there is another good reason for the proceedings to be transferred.

Transfer of proceedings from magistrates’ court to county court

15.—(1) Subject to paragraphs (2) and (3), a magistrates’ court may transfer the whole or any part of proceedings to a county court only if the magistrates’ court considers that—

(a) the transfer will significantly accelerate the determination of the proceedings;

(b) there is a real possibility of difficulty in resolving conflicts in the evidence of witnesses;

(c) there is a real possibility of a conflict in the evidence of two or more experts;

(d) there is a novel or difficult point of law;

(e) there are proceedings concerning the child in another jurisdiction or there are international law issues;

(f) there is a real possibility that enforcement proceedings may be necessary and the method of enforcement or the likely penalty is beyond the powers of a magistrates’ court;

(g) there is a real possibility that a guardian ad litem will be appointed under rule 9.5 of the Family Proceedings Rules 1991(9);

(h) there is a real possibility that a party to proceedings is a person lacking capacity within the meaning of the Mental Capacity Act 2005(10) to conduct the proceedings; or

(i) there is another good reason for the proceedings to be transferred.

(2) Proceedings under any of the provisions mentioned in articles 5(1)(a) to (c) or 5(2)(i) to (l) may not be transferred from a magistrates’ court.

(3) Proceedings under section 25 of the 1989 Act (use of accommodation for restricting liberty) may not be transferred from a magistrates’ court which is not a family proceedings court within the meaning of section 67 of the Magistrates’ Courts Act 1980(11).

Transfer of proceedings from county court to magistrates’ court

16.—(1) A county court must transfer to a magistrates’ court proceedings which were transferred under article 15(1) if the county court considers that none of the criteria in article 15(1) applies.

(2) Subject to articles 5(3) and (4), 6 and 8, a county court must transfer to a magistrates’ court proceedings which were started in the county court if the county court considers that none of the criteria in article 15(1)(b) to (i) applies.

Transfer of proceedings from one county court to another

17.  Subject to articles 16, 20, 21 and 22 a county court (the “transferring court”) may transfer proceedings to another county court (the “receiving court”) only if the transferring court considers that—

(a) the transfer will significantly accelerate the determination of the proceedings;

(b) it is more convenient for the parties or for the child who is the subject of the proceedings for the proceedings to be dealt with by the receiving court;

(c) the proceedings involve the determination of a question of a kind mentioned in section 59(1) of the 1996 Act and the property in question is situated in the district of the receiving court; or

(d) there is another good reason for the proceedings to be transferred.

Transfer of proceedings from county court to High Court

18.  A county court may transfer proceedings to the High Court only if the county court considers that—

(a) the proceedings are exceptionally complex;

(b) the outcome of the proceedings is important to the public in general; or

(c) there is another substantial reason for the proceedings to be transferred.

Transfer of proceedings from High Court

19.  The High Court must transfer to a county court or a magistrates’ court proceedings which were started in, or transferred to, the High Court if the High Court considers that none of the criteria in article 18 applies.

SECTION 3 TRANSFER OF PROCEEDINGS TO A SPECIFIED CLASS OF COUNTY COURT

Transfer of proceedings under the 1989 Act

20.—(1) Where proceedings under Part 1 or 2 of, or Schedule 1 or paragraphs 4 to 7 or 9 of Schedule A1 to, the 1989 Act are to be transferred to a county court, they must be transferred to a family hearing centre.

(2) Where proceedings under Part 3, 4 or 5 of the 1989 Act are to be transferred to a county court, they must be transferred to a care centre.

Transfer of proceedings under the 2002 Act

21.—(1) Subject to paragraph (2), where proceedings under the 2002 Act are to be transferred to a county court, they must be transferred to an adoption centre.

(2) Where proceedings for—

(a) a Convention Adoption Order; or

(b) an adoption order under the 2002 Act where section 83 of that Act applies,

are to be transferred to a county court, they must be transferred to an intercountry adoption centre.

Transfer of proceedings under Part 4A of the 1996 Act

22.—(1) Where proceedings under Part 4A of the 1996 Act are to be transferred to a county court, they must be transferred to a forced marriage county court.

(2) Articles 17 to 19 apply to the transfer of proceedings under Part 4A of the 1996 Act as they apply to the transfer of other proceedings but as if the modification in paragraph (3) were made.

(3) Article 19 is to be read as if “or a magistrates’ court” were omitted.

SECTION 4 TRANSFER OF PROCEEDINGS TO PARTICULAR COURT

Transfer of proceedings when arrested for breach of order under Part 4 of the 1996 Act

23.  Where a person is brought before—

(a) the relevant judicial authority in accordance with section 47(7)(a) of the 1996 Act (arrest for breach of order); or

(b) a court by virtue of a warrant issued under section 47(9) of the 1996 Act,

and the matter is not then disposed of immediately, the relevant judicial authority or the court may transfer the matter to the relevant judicial authority or court which attached the power of arrest under section 47(2) or (3) of the 1996 Act or which issued the warrant.

Transfer of proceedings when arrested for breach of order under Part 4A of the 1996 Act

24.  Where a person is brought before—

(a) the relevant judge in accordance with section 63I(3) of the 1996 Act (arrest for breach of order); or

(b) a court by virtue of a warrant issued under section 63J(3) of the 1996 Act,

and the matter is not then disposed of immediately, the relevant judge or the court may transfer the matter to the relevant judge or court which attached the power of arrest under section 63H(2) or (4) of the 1996 Act or which issued the warrant.

PART 4 APPLICATION FOLLOWING REFUSAL TO TRANSFER FROM MAGISTRATES’ COURT TO COUNTY COURT AND APPEAL AGAINST TRANSFER TO MAGISTRATES’ COURT BY COUNTY COURT

Application following refusal to order transfer of proceedings from magistrates’ court to county court

25.—(1) Where a magistrates’ court refuses to order the transfer of proceedings to a county court under article 15(1), an application may be made for an order transferring proceedings to a county court.

(2) An application under paragraph (1) must be made—

(a) in relation to proceedings under the 2002 Act, to an adoption centre;

(b) in relation to proceedings under Parts 3, 4 and 5, to a care centre; and

(c) in any other case, to a family hearing centre.

(3) In this article, “proceedings” means the proceedings under the 1989 Act or the 2002 Act and proceedings under section 55A of the Family Law Act 1986 (declarations of parentage).

Appeal against transfer of proceedings to magistrates’ court by county court

26.  Where a county court orders the transfer of proceedings to a magistrates’ court under article 16, an appeal may be made against that decision—

(a) where the decision was made by a district judge or deputy district judge of a county court, to a circuit judge; or

(b) where the decision was made by a district judge or deputy district judge of the principal registry of the Family Division, to a judge of the Family Division of the High Court.

PART 5 REVOCATIONS, CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS

Revocations

27.  Subject to article 29(2) and (3), the instruments listed in column 1 of the table in Schedule 2 (which have the references listed in column 2) are revoked to the extent indicated in column 3.

Consequential amendments

28.—(1) Subject to article 29(4), the Family Proceedings Rules 1991(12) are amended as follows—

(a) in rule 2.39(1) for “where no such application as is referred to in rule 2.40(1) is pending the”, substitute “The”;

(b) omit rule 2.40;

(c) in rule 3.8(2) omit “but shall be treated, in the first instance, as an application to the High Court for leave”;

(d) for rule 4.22(2A) substitute—

“(2A) In relation to an appeal to the High Court under section 94, the documents required to be filed by paragraph (2) shall be filed in the district registry, being in the same place as a care centre within the meaning of article 2(b) of the Allocation and Transfer of Proceedings Order 2008(13), which is nearest to the court below.”; and

(e) in rule 4.26 after paragraph (5) add—

“(6) Where a local authority makes an application to a magistrates’ court for a care or supervision order with respect to the child in relation to whom the direction was given, the local authority must inform the court that gave the direction of the application in writing.”.

(2) Subject to article 29(4), for rule 3A(8) of the Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991(14) substitute—

“(8) Subject to any enactment, where an application for an occupation order or a non-molestation order is pending, the court may transfer the proceedings to another court of its own motion or on the application of either party; and any order for transfer shall be made in Form FL417.”.

Transitional provisions

29.—(1) This Order applies, so far as practicable, to proceedings started before but not concluded by 25th November 2008.

(2) Where, by reason of paragraph (1), this Order does not apply to particular proceedings which have been started but not concluded before the 25th November 2008, the Children (Allocation of Proceedings) Order 1991(15) or the Family Law Act 1996 (Part IV) (Allocation of Proceedings) Order 1997(16), as the case may be, continue to apply to those proceedings.

(3) The Children (Allocation of Proceedings) (Appeals) Order 1991(17) continues to apply to—

(a) an appeal started before 25th November 2008; and

(b) an appeal in proceedings to which the Children (Allocation of Proceedings) Order 1991 still applies by virtue of paragraph (2).

(4) The amendments in article 28 do not apply in relation to proceedings to which the Children (Allocation of Proceedings) Order 1991 or the Family Law Act 1996 (Part IV) (Allocation of Proceedings) Order 1997 still apply by virtue of paragraph (2).

(5) In relation to an appeal in respect of a type of case before the commencement of section 10 of the Child Support, Pensions and Social Security Act 2000(18) for the purposes of that type of case, the reference to the Child Support Appeals (Jurisdiction of Courts) Order 2002 in article 5(1)(f) is to be read as a reference to the Child Support Appeals (Jurisdiction of Courts) Order 1993(19).

By authority of the Secretary of State

Bridget Prentice

Parliamentary Under-Secretary of State

Ministry of Justice

30th October 2008