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Courts and Tribunals (Judiciary and Functions of Staff) Act 2018

Contents

Matrimonial and Family Proceedings Act 1984 ("MFPA 1984")

  1. Paragraph 13 amends section 31C(2) of the MFPA 1984 (which makes provision for precedent in relation to certain decisions of the family court) to replace references to justices’ clerks or assistant clerks with persons authorised under section 67B(2) of the Courts Act 2003 ("CA 2003"). This means that HMCTS staff authorised under section 67B(2) must follow decisions made by a judge listed in section 31C(1)(a) to (i) in the same way that a justices’ clerk or assistant clerk previously had to.
  2. Paragraph 14 substitutes a new section 31O into the MFPA 1984, which now provides for the giving of legal advice to judges of the family court by persons authorised by the Lord Chief Justice or his nominee. The functions described in new section 31O(1) largely replicate those in the current section 31O(2) that relate to justices’ clerks. The power in the current section 31O(1) for the Lord Chancellor to authorise justices’ clerks to carry out functions of the family court or a judge of the court, is now covered by a power for rules of court under new section 67B(1) of the CA 2003.
  3. New section 31O(2) provides that authorised persons giving legal advice must be members of court and tribunal staff and have such qualifications as are prescribed in regulations (subject to the negative resolution procedure) made by the Lord Chancellor with the agreement of the Lord Chief Justice.
  4. New section 31O(4) and (5) of the MFPA 1984 ensure the independence of persons authorised to give legal advice under section 31O(1) by providing that they are subject only to the direction of the Lord Chief Justice and are not subject to the direction of the Lord Chancellor or any other person.
  5. The Lord Chief Justice may nominate one or more judicial office holders or members of court or tribunal staff to carry out his authorisation and direction functions (section 31O(6)). Section 31O(7) gives those nominees who are members of court or tribunal staff independence when exercising these authorisation or direction functions, though they remain subject to the direction of the Lord Chief Justice or a judicial officer holder nominated by the Lord Chief Justice.

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