A senior judge has ordered lawyers to stop undermining the family court's powers by 'rushing off to the High Court at the first sign of complexity'.
Mr Justice Mostyn, in VS v RE, ordered the case to be transferred from the High Court, where enforcement proceedings had taken place, to the family court.
According to the judgment, published last week, Mr Justice Moor made a final order last year which required the respondent to pay a large sum and the applicant's costs. The respondent did not comply. The applicant issued enforcement proceedings, which came before Mostyn last month. Mostyn noticed that the main and enforcement proceedings appeared to have taken place in the High Court rather than the family court. He was told by counsel for the applicant that only the High Court could make a charging order.
'It appears that the applicant believed that she was entitled, as of right, to commence the main case and the enforcement application in the High Court. She and her advisers were mistaken.' Mostyn said.
The Family Procedure Rules required the cases to be started in the family court, Mostyn said. 'If the mistake had been noticed the cases should have been transferred back to the family court under the power in section 38 of the Matrimonial and Family Proceedings Act 1984. I did not do so on 10 April 2018 as I accepted (without checking) [counsel's] submission that the enforcement application had to be in the High Court.'
Mostyn said it would be an 'absurd consequence' in ancillary relief proceedings between former spouses for the family court to have the power to order a sale of property at an interim stage but not in enforcement proceedings after a charging order had been granted.
Mostyn said: 'This case is a classic example of lawyers rushing off to the High Court at the first sign of complexity. This is a practice that must cease. The family court must be recognised as the sole forum for resolution of all family cases save for those specified in the schedule to the president's guidance.'