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Part IIE+W Civil Jurisdiction and Procedure

Domestic proceedingsE+W

65 Meaning of domestic proceedings.E+W

(1)In this Act “ [F1family proceedings]” means proceedings under any of the following enactments, that is to say—

(a)the M1Maintenance Orders (Facilities for Enforcement) Act 1920;

(b)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)section 3 of the M2Marriage Act 1949;

[F3(ca)Schedule 2 to the Civil Partnership Act 2004;]

(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F4

F5(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F6(ee)section 35 of the Matrimonial Causes Act 1973;]

[F7(ef)paragraphs 69 to 72 of Schedule 5 to the Civil Partnership Act 2004;]

(f)Part I of the M3Maintenance Orders (Reciprocal Enforcement) Act 1972;

F5(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F8(h)the Adoption and Children Act 2002;]

(i)section 18 F9 of the M4Supplementary Benefits Act 1976;

(j)Part I of the M5Domestic Proceedings and Magistrates" Courts Act 1978;

[F10(ja)Schedule 6 to the Civil Partnership Act 2004;]

F11(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(l)section 60 of this Act;

[F12(m)Part I of the Civil Jurisdiction and Judgments Act 1982, so far as that Part relates to the recognition or enforcement of maintenance orders;]

F13(m). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14(m). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F15(mm)section 55A of the M6Family Law Act 1986;]

[F16(n)the Children Act 1989]

[F17(nza)section 72 or section 79 of the Childcare Act 2006;]

[F18(nzb)sections 34 and 43 of the Children and Families (Wales) Measure 2010;]

[F19(na)section 54 of the Human Fertilisation and Embryology Act 2008;]

F20[(nb)]section 106 of the Social Security Administration Act 1992;

(o)section 20 (so far as it provides, by virtue of an order under section 45 F21, for appeals to be made to a court) F22. . . of the Child Support Act 1991; except that, subject to subsection (2) below, it does not include—

(i)proceedings for the enforcement of any order made, confirmed [F23, registered or enforceable] under any of those enactments;

(ii)proceedings for the variation of any provision for the periodical payment of money contained in an order made, confirmed [F23, registered or enforceable] under any of those enactments; or

(iii)proceedings on an information in respect of the commission of an offence under any of those enactments.

[F24(p)Part IV of the Family Law Act 1996;]

[F25(q)sections 11 and 12 of the Crime and Disorder Act 1998;]

[F26(r)Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [F27, as amended from time to time and as applied by the Agreement made on 19th October 2005 between the [F28European Union] and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJNo. L 299 16.11.2005 at p62)] , so far as that Regulation relates to the recognition or enforcement of maintenance orders;]

[F29(ra)Council Regulation (EC) No 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark;]

[F30(s)Council Regulation (EC) No 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, so far as that Regulation relates to jurisdiction, recognition and enforcement in parental responsibility matters;]

(2)The court before which there fall to be heard any of the following proceedings, that is to say—

(a)proceedings (whether under this Act or any other enactment) for the enforcement of any order made, confirmed [F31, registered or enforceable] under any of the enactments specified in paragraphs (a) to (k) [F32(m), (n) and [F33, (p) [F34, (r) and (ra)]]] of subsection (1) above;

(b)proceeding (whether under this Act or any other enactment) for the variation of any provision for the making of periodical payments contained in an order made, confirmed [F31, registered or enforceable] under any of those enactments;

(c)proceedings for an attachment of earnings order to secure maintenance payments within the meaning of the M7Attachment of Earnings Act 1971 or for the discharge or variation of such an order; or

(d)proceedings for the enforcement of a maintenance order which is registered in a magistrates’ court under Part II of the M8Maintenance Orders Act 1950 or Part I of the M9Maintenance Orders Act 1958 or for the variation of the rate of payments specified by such an order.

F35[(e)[F36proceedings under]] section 20 (so far as it provides, by virtue of an order under section 45, for appeals to be made to a court) F22. . .of the Child Support Act 1991.

may if it thinks fit order that those proceedings and any other proceedings being heard therewith shall, notwithstanding anything in subsection (1) above, be treated as [F1family proceedings]for the purposes of this Act.

(3)Where the same parties are parties—

(a)to proceedings which are [F1family proceedings] by virtue of subsection (1) above, and

(b)to proceedings which the court has power to treat as [F1family proceedings] by virtue of subsection (2) above,

and the proceedings are heard together by a magistrates’ court, the whole of those proceedings shall be treated as [F1family proceedings]for the purposes of this Act.

(4)No appeal shall lie from the making of, or refusal to make, an order under subsection (2) above.

(5)Until the M10Adoption Act 1976 comes into force subsection (1) above shall have effect as if for paragraph (h) thereof there were substituted the following paragraph—

“(h)The Adoption Act 1958,the Adoption Act 1960 or Part I of the Children Act 1975, except proceedings under section 42 or 43 of the Adoption Act 1958.”

(6)Until the M11Child Care Act 1980 comes into force subsection (1) above shall have effect as if for paragraph (k) thereof there were substituted the following paragraph—

“(k)Section 87 or section 88 of the Children and Young Persons Act 1933 or section 26 of the Children Act 1948.”

Textual Amendments

F8S. 65(1)(h) substituted (30.12.2005) by 2002 c. 38, ss. 139, 148, Sch. 3 para. 37 (with Sch. 4 paras. 6-8);S.I. 2005/2213, art. 2(o)

F12S. 65(1)(m) commencing “Part I of the Civil Jurisdiction and Judgments Act 1982" inserted (1.1.1987) by Civil Jurisdiction and Judgments Act 1982 (c. 27, SIF 45:3), s. 15(4), Sch. 12 Pt. I para. 7(a)

F13S. 65(1)(m) commencing “section 24" (which was added (E.W.S.) (11.4.1988) by Social Security Act 1986 (c. 50, SIF 113:1), s. 86(1), Sch. 10 Pt. II para. 54) repealed (1.7.1992) by Social Security (Consequential Provisions) Act 1992 (c. 6), ss. 3, 7(2), Sch. 1 (subject as mentioned in Local Government Finance Act 1992 (c. 14), s. 118)

F15S. 65(1)(mm) inserted (1.4.2001) by 2000 c. 19, s. 83, Sch. 8 para. 2(2) (with s. 83(6)); S.I. 2001/774, art. 2(b)(c)

F21S.I. 1993/961 provides for appeals on parentage issues to be made to a court instead of to a child support appeals tribunal.

F22Words in s. 65(1)(o)(2)(e) repealed (1.4.2001) by 2000 c. 19, s. 85, Sch. 9 Pt. IX (with s. 83(6)); S.I. 2001/774, art. 2(d)

F25S. 65(1)(q) inserted (30.9.1998) by 1998 c. 37, s. 119, Sch. 8 para. 42; S.I. 1998/2327, art. 2(1)(y)(2)(o)

F26S. 65(1)(r) inserted (1.3.2002) by S.I. 2001/3929, arts. 1(b), 5, Sch. 3 para. 11(a)

F32Words in s. 65(2)(a) substituted (1.10.1997) by virtue of S.I. 1997/1898, art. 2

F33Words in s. 65(2)(a) substituted (1.3.2002) by S.I. 2001/3929, arts. 1(b), 5, Sch. 3 para. 11(b)

F35S. 65(2)(e) inserted (5.4.1993) by S.I. 1993/623, art. 3, Sch. 2 para. 2

F36Words in 65(2)(e) inserted (1.4.2001) by 2000 c. 19, s. 83, Sch. 8 para. 2(3) (with s. 83(6)); S.I. 2001/774, art. 2(b)(c)

Modifications etc. (not altering text)

Marginal Citations

[F3765AMeaning of family procedure rulesE+W

In this Act, “Family Procedure Rules” means rules made under section 75 of the Courts Act 2003.]

Textual Amendments

[F3866 Composition of magistrates’ courts for family proceedings: general.E+W

(1)A magistrates’ court when hearing family proceedings shall be composed of—

(a)two or three lay justices; or

(b)a District Judge (Magistrates’ Courts) as chairman and one or two lay justices;

or, if it is not practicable for such a court to be so composed, a District Judge (Magistrates’ Courts) sitting alone.

(2)Except where such a court is composed of a District Judge (Magistrates’ Courts) sitting alone, it shall, so far as practicable, include both a man and a woman.

(3)In this section [F39“lay justice” has the same meaning as in the Courts Act 2003] .]

Textual Amendments

F39Words in s. 66(3) substituted (1.4.2005) by Courts Act 2003 (c. 39), ss. 109(1), 110, Sch. 8 para. 215; S.I. 2005/910, art. 3(y)

[F4067 Family proceedings courts.E+W

(1)Magistrates' courts—

(a)constituted in accordance with this section or section 66 of the Courts Act 2003 (judges having powers of District Judges (Magistrates' Courts)), and

(b)sitting for the purpose of hearing family proceedings,

are to be known as family proceedings courts.

(2)A justice of the peace is not qualified to sit as a member of a family proceedings court to hear family proceedings of any description unless he has an authorisation extending to the proceedings.

(3)He has an authorisation extending to the proceedings only if he has been authorised by the [F41Lord Chief Justice] to sit as a member of a family proceedings court to hear—

(a)proceedings of that description, or

(b)all family proceedings.

(4)The [F42Lord Chief Justice may, after consulting the Lord Chancellor, by rules] make provision about—

(a)the grant and revocation of authorisations,

(b)the appointment of chairmen of family proceedings courts, and

(c)the composition of family proceedings courts.

(5)Rules under subsection (4) may confer powers on the [F43Lord Chief Justice] with respect to any of the matters specified in the rules.

(6)Rules under subsection (4) may be made only after consultation with the Family Procedure Rule Committee.

(7)Rules under subsection (4) are to be made by statutory instrument.

(8)A statutory instrument containing rules under subsection (4) is subject to annulment in pursuance of a resolution of either House of Parliament.

[F44(9)The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (3) or (4) or the powers conferred on him by rules under subsection (4).]]

Textual Amendments

F40S. 67 substituted (1.4.2005) by Courts Act 2003 (c. 39), ss. 49(1), 110; S.I. 2005/910, art. 3(r) (with saving for the effect of the amending provision 2003 c. 39, s. 49(1) (1.4.2005) by virtue of The Courts Act 2003 (Transitional Provisions, Savings and Consequential Provisions) Order 2005 (S.I. 2005/911, art. 8(1))

Modifications etc. (not altering text)

C3S. 67 modified (prosp.) by Courts Act 2003 (c. 39), ss. 66(4), 110

68 Combined domestic court panels.E+W

F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F4668APower of the magistrates’ court to order disclosure of documents, inspection of property etc. in family proceedingsE+W

(1)On the application, in accordance with rules of court, of a party to any family proceedings, a magistrates’ court, in such circumstances as may be prescribed, has the power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his or her possession, custody or power any documents which are relevant to any issue arising out of the proceedings—

(a)to disclose whether those documents are in that person’s possession, custody or power; and

(b)to produce such of those documents as are in that person’s possession, custody or power to the applicant or, on such conditions as may be specified in the order,—

(i)to the applicant’s legal advisers; or

(ii)to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or

(iii)if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.

(2)On the application, in accordance with rules of court, of a party to any family proceedings, a magistrates’ court, in such circumstances as may be prescribed, has the power to make an order providing for any one or more of the following—

(a)the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, any party to the proceedings but which is the subject matter of the proceedings or as to which any question arises in the proceedings;

(b)the taking of samples of any such property as is mentioned in paragraph (a) and the carrying out of any experiment on or with any such property.

(3)This section is without prejudice to the exercise by a magistrates’ court of any power to make orders which is exercisable apart from the provisions of this section.]

Textual Amendments

69 Sittings of magistrates’ courts for domestic proceedings.E+W

(1)The business of magistrates’ courts shall, so far as is consistent with the due dispatch of business, be arranged in such manner as may be requisite for separating the hearing and determination of [F47family proceedings] from other business.

(2)In the case of [F47family proceedings] in a magistrates’ court other than proceedings under [F48the Adoption and Children Act 2002], no person shall be present during the hearing and determination by the court of the proceedings except—

(a)officers of the court;

(b)parties to the case before the court, their [F49legal representatives], witnesses and other persons directly concerned in the case;

(c)representatives of newspapers or news agencies;

(d)any other person whom the court may in its discretion permit to be present, so, however, that permission shall not be withheld from a person who appears to the court to have adequate grounds for attendance.

(3)In relation to any [F47family proceedings] under [F48the Adoption and Children Act 2002], subsection (2) above shall apply with the omission of paragraphs (c) and (d).

(4)When hearing [F47family proceedings], a magistrates’ court may, if it thinks it necessary in the interest of the administration of justice or of public decency, direct that any persons, not being officers of the court or parties to the case, the parties’ [F50legal representatives], or other persons directly concerned in the case, be excluded during the taking of any indecent evidence.

(5)The powers conferred on a magistrates’ court by this section shall be in addition and without prejudice to any other powers of the court to hear proceedings in camera.

(6)Nothing in this section shall affect the exercise by a magistrates’ court of the power to direct that witnesses shall be excluded until they are called for examination.

(7)Until the coming into operation of the M12Adoption Act 1976 this section shall have effect as if for any reference to that Act there were substituted a reference to the M13Adoption Act 1958, the M14Adoption Act 1960 and Part I of the M15Children Act 1975.

Textual Amendments

F48Words in s. 69(2)(3) substituted (30.12.2005) by 2002 c. 38, ss. 139, 148, Sch. 3 para. 38 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(o)

Marginal Citations

70 Jurisdiction of magistrates’ courts in inner London for domestic proceedings.E+W

(1)A relevant court [F51acting in an inner London local justice] area shall, in addition to hearing proceedings which (apart from subsection (2) below) may be heard by a relevant court [F52acting in that] area, have jurisdiction to hear proceedings which could be heard before a relevant court [F53acting in any] other such area, but shall not exercise the jurisdiction conferred by this subsection except in such cases or classes of case as may be determined by the [F54Lord Chancellor].

(2)A magistrates’ court [F55acting in an inner London local justice] area shall not hear any [F56family proceedings] if the [F57Lord Chancellor so determines] .

(3)In this section—

Textual Amendments

F58Words in s. 70(3) substituted (1.4.2005) by Courts Act 2003 (c. 39), ss. 109(1), 110, Sch. 8 para. 216(4); S.I. 2005/910, art. 3(y)

71 Newspaper reports of domestic proceedings. E+W

[F59(1)In the case of [F60family proceedings] in a magistrates’ court F61. . . it shall not be lawful for a person to whom this subsection applies—

(a)to print or publish, or cause or procure to be printed or published, in a newspaper or periodical, or

(b)to include, or cause or procure to be included, in a programme included in a programme service (within the meaning of the Broadcasting Act 1990) for reception in Great Britain,

any particulars of the proceedings other than such particulars as are mentioned in subsection (1A) below.

(1A)The particulars referred to in subsection (1) above are—

(a)the names, addresses and occupations of the parties and witnesses;

(b)the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given;

(c)submissions on any point of law arising in the course of the proceedings and the decision of the court on the submissions;

(d)the decision of the court, and any observations made by the court in giving it.

(1B)Subsection (1) above applies—

(a)in relation to paragraph (a) of that subsection, to the proprietor, editor or publisher of the newspaper or periodical, and

(b)in relation to paragraph (b) of that subsection, to any body corporate which provides the service in which the programme is included and to any person having functions in relation to the programme corresponding to those of an editor of a newspaper.]

(2)In the case of [F60family proceedings] in a magistrates’ court under [F62the Adoption and Children Act 2002], [F63subsection (1A)]above shall apply with the omission of paragraphs (a) and (b) F64. . .

(3)Any person acting in contravention of this section shall be liable on summary conviction to a fine not exceeding [F65level 4 on the standard scale].

(4)No prosecution for an offence under this section shall be begun without the consent of the Attorney General.

(5)Nothing in this section shall prohibit the printing or publishing of any matter in a newspaper or periodical of a technical character bona fide intended for circulation among members of the legal or medical professions.

(6)Until the coming into operation of the M16Adoption Act 1976 this section shall have effect as if for any reference to that Act there were substituted a reference to the M17Adoption Act 1958, the M18Adoption Act 1960 and Part I of the M19Children Act 1975.

Textual Amendments

F59S. 71(1)(1A)(1B) substituted (1.1.1991) for s. 71(1) by Broadcasting Act 1990 (c. 42, SIF 96), ss. 4(6), 87(6), 203(1), Sch. 20 para. 29(2)

F61Words in s. 71(1) repealed (30.12.2005) by virtue of 2002 c. 38, ss. 139, 148, Sch. 3 para. 39(a), Sch. 5 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(o); S.I. 2005/2897, art. 2(b)

F62Words in s. 71(2) substituted (30.12.2005) by 2002 c. 38, ss. 139, 148, Sch. 3 para. 39(b)(i) (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(o)

F64Words in s. 71(2) repealed (30.12.2005) by 2002 c. 38, ss. 139, 148, Sch. 3 para. 39(b)(ii), Sch. 5 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(o); S.I 2005/2897, {art. 2}

Modifications etc. (not altering text)

Marginal Citations

F6672 Report by probation officer on means of parties.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

73 Examination of witnesses by court.E+W

Where in any [F67family proceedings], or in any proceedings for the enforcement or variation of an order made in [F67family proceedings], it appears to a magistrates’ court that any party to the proceedings who is not legally represented is unable effectively to examine or cross-examine a witness, the court shall ascertain from that party what are the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, as the case may be, and shall put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

Textual Amendments

74 Reasons for decisions in domestic proceedings.E+W

(1)[F68Rules of court may] make provision for the recording by a magistrates’ court, in such manner as may be prescribed by the rules, of reasons for a decision made in such [F69family proceedings] or class of [F69family proceedings] as may be so prescribed, and for making available a copy of any record made in accordance with those rules of the reasons for a decision of a magistrates’ court to any person who requests a copy thereof for the purposes of an appeal against that decision or for the purpose of deciding whether or not to appeal against that decision.

(2)A copy of any record made by virtue of this section of the reasons for a decision of a magistrates’ court shall, if certified by such officer of the court as may be prescribed, be admissible as evidence of those reasons.

Textual Amendments

F68Words in s. 74(1) substituted (1.4.2005) by Courts Act 2003 (c. 39), ss. 109(1), 110, Sch. 8 para. 217; S.I. 2005/910, art. 3(y)