Draft Order laid before Parliament under section 56(6) of the Access to Justice Act 1999 for approval by resolution of each House of Parliament.

2009 No. [ ] (L.[ ])

Family Proceedings
Supreme Court Of England And Wales
County Courts, England And Wales
Magistrates’ Courts, England And Wales

The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009

Made

Coming into force

The Lord Chancellor makes the following Order in exercise of the powers conferred by section 56(1) and (3) of the Access to Justice Act 19991.

In accordance with section 56(4) of that Act he has consulted as required.

In accordance with section 56(6) of that Act, a draft of this instrument was laid before Parliament and approved by a resolution of each House of Parliament.

Citation and commencement1

This Order may be cited as the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 and shall come into force on 6th April 2009.

Amendment of the Maintenance Orders Act 19582

In section 4(7) of the Maintenance Orders Act 19582 (Variation of orders registered in magistrates’ courts) for “the High Court” substitute “a county court ”.

Amendment of the Domestic Proceedings and Magistrates’ Courts Act 19783

1

The Domestic Proceedings and Magistrates’ Courts Act 19783 is amended as follows.

2

In section 19 4 (Interim orders)—

a

in subsection (1)(a) omit “and”;

b

for subsection (1)(b) substitute—

b

the High Court on ordering the application to be reheard by a magistrates’ court after the refusal of an order under section 27 of this Act, and

c

a county court on ordering the application to be reheard by a magistrates’ court on an appeal under section 29 of this Act,

c

in subsection (3) for “the High Court” substitute “a county court ”;

d

in subsection (6) after “the High Court” insert “or a county court ” ;

e

in subsection (9) after “the High Court”, in both places where it occurs, insert “or a county court ”.

3

In section 29 5 (Appeals) for “the High Court” wherever it occurs substitute “a county court ”.

Amendment of the Magistrates’ Courts’ Act 19804

1

The Magistrates’ Courts Act 19806 is amended as follows.

2

In section 111 (Statement of case by magistrates’ court), after subsection (6) insert—

7

This section does not apply in relation to family proceedings within the meaning of section 111A of this Act

3

After section 111 insert—

111AAppeals on ground of error of law etc in family proceedings

1

This section applies in relation to family proceedings in a magistrates’ court.

2

Any person who was a party to any proceeding before the court, or is aggrieved by the order, determination or other proceeding of the court, may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by appealing to a county court.

3

But a person may not appeal under subsection (2) in respect of a decision if-

a

the person has a right of appeal to a county court against the decision otherwise than under this section, or

b

the decision is final by virtue of any enactment passed after 31st December 1879.

4

A notice of appeal under subsection (2) shall be filed within 21 days after the day on which the decision of the magistrates’ court was given.

5

In this section “family proceedings” means —

a

proceedings which, by virtue of section 65 of this Act, are or may be treated as family proceedings for the purposes of this Act; and

b

proceedings under the Child Support Act 1991.

4

In section 112 (Effect of decision of High Court on case stated by magistrates’ court)—

a

for the heading substitute “Effect of decisions made on case stated or on appeal”;

b

renumber the existing text as subsection (1);

c

after subsection (1), insert —

2

Any order, determination or other proceeding of a magistrates’ court varied by a county court on an appeal under section 111A, and any judgment or order of a county court on such an appeal, may be enforced as if it were a decision of the magistrates’ court from which the appeal was brought.

Amendment of the Civil Jurisdiction and Judgments Act 19825

In section 6(3)(a) of the Civil Jurisdiction and Judgments Act 19827 (Appeals under Article 37, second paragraph and Article 41), for “to the High Court by way of case stated in accordance with section 111” substitute “to a county court in accordance with section 111A”.

Amendment of the Family Law Act 19866

In section 60(5) of the Family Law Act 19868 (Supplementary provisions as to declarations) for “the High Court” substitute “a county court ”.

Amendment of the Children Act 19897

1

The Children Act 19899 is amended as follows.

2

Subject to paragraph (3), in section 9410 (Appeals), for “the High Court” wherever it occurs substitute “a county court ”.

3

In section 94(8)(a) for “the High Court”substitute “the county court”.

Amendment of the Family Law Act 19968

In section 61 of the Family Law Act 199611 (Appeals) for “the High Court” wherever it occurs substitute “a county court ”.

Amendment of the Crime and Disorder Act 19989

1

The Crime and Disorder Act 199812 is amended as follows.

2

In section 10 (Appeals against parenting orders) for “the High Court” wherever it occurs substitute “a county court ”.

3

In section 13 (Appeals against child safety orders) for “the High Court” wherever it occurs substitute “a county court ”.

Amendment of the Civil Jurisdiction and Judgments Order 200110

In paragraph 4(3)(a) of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001 (Appeals under Article 44 and Annex IV (section 6)) 13, for “to the High Court by way of case stated in accordance with section 111” substitute “to a county court in accordance with section 111A”.

Amendment of the Allocation and Transfer of Proceedings Order 200811

1

The Allocation and Transfer of Proceedings Order 200814 is amended as follows.

2

In article 3 (Principal Registry of the Family Division)—

a

renumber the existing text as paragraph (1); and

b

after paragraph (1) insert—

2

The principal registry of the Family Division of the High Court is treated as if it were a county court for the purposes of appeals from decisions of a magistrates’ court under—-

a

section 94 of the 1989 Act; and

b

section 61 of the 1996 Act .

Transitional provisions

12

The amendment made by article 2 does not apply in relation to an appeal under section 4(7) of the Maintenance Orders Act 1958 if the notice of motion is lodged before 6th April 2009.

13

The amendments made by article 3 do not apply in relation to an appeal under section 29(1) of the Domestic Proceedings and Magistrates’ Courts Act 1978 if the notice of motion is lodged before 6th April 2009.

14

1

The amendments made by articles 4(2) and (4), 5 and 10 do not apply in relation to an application under section 111(1) of the Magistrates’ Courts Act 1980 made before 6th April 2009.

2

A person may not appeal under section 111A of that Act in respect of any proceeding if the person has made an application under section 111 of that Act in respect of the proceeding before 6th April 2009.

15

The amendment made by article 6 does not apply in relation to an appeal under section 60(5) of the Family Law Act 1986 if the notice of motion is lodged before 6th April 2009.

16

The amendments made by article 7 do not apply in relation to an appeal under section 94(1) of the Children Act 1989 if the notice of appeal is filed before 6th April 2009.

17

The amendments made by article 8 do not apply in relation to an appeal under section 61(1) of the Family Law Act 1996 if the notice of appeal is filed before 6th April 2009.

18

The amendments made by article 9 do not apply in relation to an appeal under section 10(1)(a) or 13(1) of the Crime and Disorder Act 1998 if the notice of motion is lodged before 6th April 2009.

Signed by authority of the Lord Chancellor

NameParliamentary Under Secretary of State,Ministry of Justice
EXPLANATORY NOTE

(This note is not part of the Order)

The effect of this Order is that, from 6th April 2009, appeals against decisions of magistrates’ courts in family proceedings shall lie to a county court instead of to the High Court.

Articles 2 and 3 and 6 to 9 amend the statutory provisions giving rights of appeal from decisions of magistrates’ courts. The amendments provide for the appeals to lie to a county court instead of to the High Court and make consequential changes.

Article 4(2) provides that an application to have a case stated for the opinion of the High Court under section 111 of the Magistrates’ Courts Act 1980 may not be made in relation to family proceedings. Family proceedings are defined as—

a

proceedings which, by virtue of section 65 of the 1980 Act, are or may be treated as family proceedings for the purposes of that Act; and

b

proceedings under the Child Support Act 1991.

A new section 111A is inserted into the 1980 Act by article 4(3). The new section provides that in family proceedings a person may appeal to a county court on the ground that a decision is wrong in law or is in excess of jurisdiction. This appeal to a county court replaces the procedure for making an application to have a case stated as it is not appropriate for a county court to hear such an application.

Articles 4(4), 5 and 10 amend section 112 of the 1980 Act, section 6(3) of the Civil Jurisdiction and Judgments Act 1982 and paragraph 4(3) of Schedule 1 to the Civil Jurisdiction and Judgements Order SI (2001/3929). These amendments are consequential on the new section 111A of the 1980 Act.

Article 11 makes an amendment to article 3 of the Allocation and Transfer of Proceedings Order 2008 (S.I. 2008/2836) so that the principal registry of the Family Division of the High Court is treated as a county court for the purposes of appeals from decisions of a magistrates’ court under section 94 of the Children Act 1989 and section 61 of the Family Law Act 1996. This amendment is consequential on the changes to the appeals from decisions of the magistrates’ court in family proceedings.

By virtue of articles 12 to 18 of the Order—

a

any appeal in which the appeal notice is filed or notice of motion is lodged before 6th April 2009 will lie to the same court as it would have lain before 6th April 2009; and

b

any application made before 6th April 2009 to have a case stated for the opinion of the High Court under section 111(1) of the 1980 Act will not be affected by the amendments made by the Order.

A person will not be able to appeal to a county court on the ground that a decision is wrong in law or in excess of jurisdiction under the new section 111A of the 1980 Act if the person makes an application to have a case stated under section 111 in respect of the decision before 6th April 2009.