Keeping it in the family

District Judge Roger Bird examines which judges can now hear which family cases

Since the coming into force of the Children Act 1989, only judges specifically approved for family work are permitted to hear certain family cases involving children.

How cases are allocated is the business not only of the judges but of solicitors because they will wish to ensure that the judge before whom lawyers are scheduled to appear - particularly when up against the clock on an emergency without notice application - can grant the relief sought.

So who does what? It can sometimes be confusing, and the three-column schedule to the directions which deal with the allocation of family business among the judiciary seems designed to cause the maximum distress.

Three tickets to judge

In 1997, the position of some district judges changed, and nominated care district judges (that is to say, those with the public law ticket) were given the same jurisdiction as circuit judges in private law cases.

The position has now changed again as of 30 August 2002 with the Family Proceedings (Allocation to Judiciary) (Amendment) Directions 2002.

Henceforth, there are three kinds of nomination or 'ticket' namely public law, private law and adoption and the private law ticket has been extended to certain, though not all, district judges.

Therefore, this seems a convenient moment to reconsider the whole position as to judicial demarcation and to set it out in a less mind-blowing form than the regulations.

First the easy bit; a High Court judge of the Family Division or a recorder sitting as a High Court Family Division judge can do anything.

Circuit judges sitting as section 9 of the Supreme Court Act 1981 judges, retired Family Division judges and recorders who are district judges of the Principal Registry or district judges (magistrates' courts) can also do everything provided that they are nominated for public law purposes.

Divorce

Thereafter, matters are more complicated.

Proceedings under part IV of the Family Law Act 1996 (for example, domestic violence injunctions and occupation orders) including enforcement proceedings (that is to say, committals) can be heard and determined by nominated circuit judges and deputy (retired) circuit judges, recorders nominated for public law, and all district judges.

A recorder with no nomination or a recorder nominated for private law proceedings only or a deputy district judge enjoys a similar jurisdiction except that he may not deal with enforcement.

Whether or not there are children is irrelevant.

Only circuit judges, deputy circuit judges or recorders nominated for private or public family law proceedings may hear contested petitions for divorce, nullity or judicial separation.

Note also that all undefended nullity petitions must be heard in court by one of these; district judges do not enjoy that jurisdiction and there is no 'special procedure' list for nullity.

(This is not covered by the allocation directions but comes from the Matrimonial Causes Act 1973).

Only circuit judges or deputy circuit judges or recorders nominated for adoption proceedings may finally determine adoption applications.

District judges and deputy district judges nominated for adoption proceedings may deal with interlocutory matters.

Private law applications

Moving on to private law matters, circuit judges, deputy circuit judges, recorders and district judges who have been nominated for private or public family law, and district judges of the Principal Registry may deal with all matters relating to parental responsibility (including termination thereof), guardianship, change of child's name, removal from the jurisdiction, orders under section 8 of the Children Act (residence, contact etc) and variation of section 8 orders.

District judges who are not nominated may only deal with such matters if they are interlocutory, unopposed, or limited in time and returnable before a suitably qualified judge.

Deputy district judges may only hear interlocutory or unopposed matters.

Circuit judges who are not nominated may not hear anything.

For these purposes, ex parte applications are treated as opposed.

Public law cases

Public law cases are even more convoluted.

Final orders for care or supervision, secure accommodation, change of name or removal from jurisdiction (when care order in effect), discharge or variation of care or supervision orders, and contact with child in care may only be heard by a circuit judge nominated for public law or a district judge of the Principal Registry.

District judges nominated for public law may deal with interlocutory applications only, including interim care or supervision applications when there is to be a further hearing before a circuit judge.

However, applications for variation of a supervision order, an education supervision order or discharge thereof, a child assessment order, an emergency protection order, a recovery order or various applications for leave may be heard by a district judge nominated for public law.

Appeals

Appeals from district judges can only be heard by a person capable of sitting as a judge of a county court district and nominated for private or public family law.

It should be added that, in practice, only approved circuit judges (yet another ticket) hear such appeals.

Finally, district judges nominated for private or public family law may deal with applications under the Family Law Act 1986 for disclosure of child's whereabouts, the recovery of a child or surrender of passports.

Anything not specified in the allocation directions, such as ancillary relief not directly involving children, may be dealt with by anyone.

However, one potential anomaly should be noted.

Applications for injunctions under section 37 of the Matrimonial Causes Act are heard and determined by district judges.

However, where the applicant relies on the inherent jurisdiction of the court rather than section 37 (pursuant to Shipman v Shipman [1991] 1 FLR 250) the position is less than clear.

The better view appears to be that only the High Court may exercise this inherent jurisdiction.

The practice in the Principal Registry is for such applications to be heard by a judge of the Family Division.

When, outside London, this is impossible because of a combination of urgency, geography and unavailability of judges, it might be that a district judge sitting in the High Court would be prepared to make an interim order returnable before a judge but this could not be guaranteed.

Sometimes one thinks there must be a better way of doing things.

District Judge Roger Bird sits at Bristol Combined Court Centre