James Dove looks at the implications of K (Children) (Powers of the Family Court) [2024] in his most recent article
9th Dec 2024 | Blog
You’ve got the power – The implications of K (Children) (Powers of the Family Court) [2024] EWCA Civ 2 in care proceedings
The case of K (Children) (Powers of the Family Court) [2024] EWCA Civ 2 confirms the wide powers of the Family Court to make inherent jurisdiction orders, and the limitations.
Background
The case originated as a private law dispute between a mother and father regarding their two sons, aged 15 and 12 at the time of the appeal hearing. The local authority was directed to investigate and produce a report under Section 37 of the Children Act 1989, which led to the issuance of care proceedings and interim care orders in February 2022, resulting in the removal of the children from the father’s care to a maternal family placement due to findings of alienating, controlling, and coercive behaviour by the father. Final care orders were made in May 2023, with the local authority having parental responsibility.
The mother made an application for injunctions regarding the father’s control over the children’s iPhones, supported by the local authority and the guardian but opposed by the father. The circuit judge declined to grant the injunctions, believing she lacked jurisdiction to do so sitting in the Family Court.
The Children’s Guardian appealed and the Court of Appeal, led by the President, Sir Andrew McFarlane, confirmed that the judge did have the power to make the injunctions sought and should have used it.
The implications of the judgment
Section 31E of the Matrimonial and Family Proceedings Act 1984, inserted by the Crime and Courts Act 2013, gives the Family Court the power to make any order that could be made in the High Court. Presidential Guidance (‘2018 Guidance’) was issued on 28 February 2018 and updated on 24 May 2021: Jurisdiction of the Family Court: Allocation of cases within the Family Court to High Court Judge level and transfer of cases from the Family Court to the High Court. Paragraph 15 of the 2018 Guidance confirms that judges of the Family Court can make incidental and supplemental orders under the inherent jurisdiction that are beneficial and fair. Paragraphs 16 to 19 and the Schedule of the 2018 Guidance states which applications must be issued in the High Court as the Family Court does not have jurisdiction, and those which the Family Court does have jurisdiction to hear however must be commenced in the High Court.
The Family Procedure Rules (‘the Rules’) Schedule 1 governs the allocation of proceedings, along with the President’s Guidance on Allocation and Gatekeeping for Care, Supervision
and other Proceedings under Part IV of the Children Act 1989 (Public Law) (‘2014 Guidance’). Schedule 2 of the Rules defines the levels of judges within the Family Court that can provide certain remedies.
Re K makes clear that providing family proceedings have been properly issued in the Family Court, it is open to the court to make incidental and supplemental orders to give effect to its decisions. However, whether a judge can make the order sought depends on a) whether the proceedings have been allocated within the Family Court to the correct level of judiciary as set out in Schedule 1 of the Rules and the 2014 Guidance; and b) whether the judge is restricted from making the order sought by Schedule 2 of the Rules.
At paragraph 36 of Re K there are four questions that judges should ask themselves when considering whether they have the power to make a particular order:
(1) Are these properly issued family proceedings?
(2) Is the order sought one that is incidental or supplemental to the substantive orders that are sought in the proceedings?
(3) Is the remedy one that is reserved to a higher level of judge by the Schedule to the Rules or by the 2014 Guidance?
(4) Is the application one that is reserved to the High Court by the Rules or by the 2018
Guidance?
If the answer to the first two questions is ‘yes’ and to the other questions ‘no’, the power to make the order exists. Whether an order should be made will depend upon an assessment of welfare and fairness, and insofar as the Convention rights of others are affected, considerations of necessity and proportionality.
Application of Re K in care proceedings
Re K is likely to have significant utility in care proceedings, which indeed Re K concerned.
Examples of when inherent jurisdiction orders could be made are:
a) Port alert orders (see A v B [2021] EWHC 1716 (Fam); [2021] 4 WLR 108);
b) Bench warrants (see In re K (Remo: Power of Magistrates to issue Bench Warrant) [2017] EWFC 27) to get a party to attend court, for example for a parent to give evidence in a non-accidental injury case;
c) Injunctions to prevent a parent from undermining a care order (see In re T (A Child) (Non-molestation Order) [2017] EWCA Civ 1889; [2018] Fam 290);
d) Injunctions against third parties, for example, where material has been posted on social media or a website. Re K confirms that just because an order impinges on a 3rd party that would not necessarily necessitate a transfer to High Court level within the Family Court.
The use of inherent jurisdiction orders is likely to be most useful when the court would have otherwise made a specific issue order or prohibited steps order, but it is prohibited from doing so by section 9 of the Children Act 1989 because a child is in care.
Local authorities should also consider inviting the court to make non-molestation orders, even though local authorities are not entitled to apply for them. The advantage to a non-molestation order is that it has criminal sanctions attached to it and the police can use their powers to investigate and prosecute any breaches. The author was involved in a recent case where permission to appeal the making of a non-molestation order was sought by the mother, in circumstances when the court had made the order of its own motion within care proceedings to protect the children in care. The Court of Appeal dismissed the mother’s application for permission to appeal.
Conclusion
Re K confirms to practitioners and judges the wide powers that the Family Court has to make orders to give effect to its decisions, and consideration should be given to making inherent jurisdiction orders when there is not an order under statute available to give effect to the decision of the court. This is most likely to arise when an interim or final care order is made and there is no option of a specific issue or prohibited steps order.
James Dove
