At what level of court should cases be heard?
Guidance given below is taken from Schedule to the Allocation and Gatekeeping Guidance ‐ Private Law [April 2014].
When an application is made to court, a Judge will decide what level of court/judge considers the case based on complexity.
When, on allocation, Gatekeepers are considering specifically the issue of complexity, it is envisaged that they will allocate all relevant family
applications to magistrates UNLESS they are of the type set out below.
District Judge (unless in the opinion of the allocated District Judge, the particular characteristics of the individual case justify transfer to a Circuit Judge).
- Allegations of significant physical, emotional or sexual abuse, or behaviours which have caused, or are at risk of causing, significant harm to the relevant child.
- Cases where significant factual matters are in issue (including substance misuse, domestic abuse, paternity, physical and/or mental health of relevant adults
or children) such that a factfinding hearing lasting more than one day is likely and the necessity for expert evidence (i.e. beyond the expertise of CAFCASS and/or social worker) is
likely to arise.
- Cases where the capacity of one of the parents is, or is likely to be, raised as an issue.
- Cases where there is a real possibility that the child will have to be joined as a party (see guidelines under rule 16.4 FPR 2010) and/or may be called to give evidence.
- Cases where there is, or is likely to be, a significant issue in relation to disclosure of documents to or from third parties or outside agencies.
- Cases where immigration issues are likely to be relevant and significant.
- Cases involving leave to remove children (permanently or temporarily) from the jurisdiction to Hague Convention and/or EU countries.
- Cases which involve significant issues to be determined in relation to the disclosure of information to one or other of the parties (e.g. where the Cafcass officer seeks to withhold information contained in a Safeguarding letter).
- Cases involving the enforcement of existing orders made by a District Judge or cases where a District Judge has previously made orders in relation to the same parties. Allocation should be to the same District Judge where practicable.
- Cases where there is a real possibility that Public Law Orders will be required, where the issues arising are of a type described in Part 1 or Part 2 of the Schedule to the President´s Guidance on Allocation and Gatekeeping for Care, Supervision and other Part 4 proceedings.
Cases to be heard by a District Judge but may be by Circuit Judge (or at most serious level by High Court Judge):
- Cases involving significant factual disputes (including allegations of abuse, violence, alleged or proven criminal activity, gravely inappropriate
behaviours, sexual abuse, complex physical and/or mental health issues in relation to relevant adults or children) particularly where a fact finding hearing of 3 days
or more is a real possibility and/or where it is likely that more than one expert (not including CAFCASS and/or social worker) will be involved.
- Cases where there are particularly difficult and unusual immigration or jurisdictional issues.
- Cases involving leave to remove (permanently or temporarily) from the jurisdiction to Hague Convention and/or EU countries which are factually or legally complex.
- Cases which appear to involve, or have the potential to involve, intractable opposition to contact.
- Cases seeking enforcement of existing Orders made by a Circuit Judge or Recorder or in cases where a Circuit Judge or Recorder has previously made orders
in relation to the same parties. Allocation should be to the same Circuit Judge or Recorder where practicable.
- Circuit Judge (not District Judge): Cases seeking leave to remove from the jurisdiction [permanently or temporarily] outside of the Hague Convention/ the EU. Where there are
particular factual or legal complexities, the cases should ordinarily be allocated to the High Court following consultation with the DFJ.
Part 3: High Court and Inherent Jurisdiction
Cases to be heard by the High Court:
- Inherent jurisdiction of the court relating to minors.
- Application to make a child a ward of court, or to bring such an order to an end.
- Proceedings under the Child Abduction & Custody Act 1985, and other international abduction cases.
- Proceedings with an international element relating to or enforcement of Orders, conflict or comity of laws which have exceptional immigration/asylum status issues.
- Declarations of incompatibility under the Human Rights Act 1998.
- Applications for Declaratory Relief Registration of foreign judgments under Part 1 of the Foreign Judgments (Reciprocal Enforcement) Act 1920.
- Registration of judgments given in a different part of the UK under Part 2 of the Civil Jurisdiction and Judgments Act 1982.
- Registration of custody (Part 1) orders made in a court in another part of the UK under the Family Law Act 1986, section 32(1).
- Parental Responsibility order prior to adoption abroad (Adoption and Children Act 2002, section 84(1)).
- Application for direction that section 67(3) of the Adoption and Children Act 2002 (status conferred by adoption) does not apply.
- Application for annulment of overseas or Convention adoption under Adoption and Children Act 2002, section 89.
- Issuance of letter of request for person to be examined out of the jurisdiction.
- Applications under Article 15 of the 2201/2003 Council Regulation and Article 9 of the 1996 Hague Convention (request for transfer of jurisdiction).
- Applications under Article 16 of the 1996 Hague Convention for a declaration as to the extent or existence of parental responsibility.
- Applications under Part 31 of the FPR (registration of orders under the 2201/2003 Council Regulation, the 1996 Hague Convention and the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005).
- Cases which require the jurisdiction of the Administrative Court to be invoked.
Gatekeeping in Enforcement Proceedings
It is important to be aware of statutory guidance in relation to case allocation where committal for non-compliance is being considered.
The Family Court (Composition and Distribution of Business) Rules 2014 at section 17(5) states:
(5) Any power of the family court to make an order for committal in respect of a breach of a judgment, order or undertaking to do or abstain
from doing an act may only be made by a judge of the same level as, or of a higher level than, the judge who make the judgment or order, or
who accepted the undertaking, as the case may be.
This rule applies to "applications in existing proceedings or in connection with proceedings that have concluded".
Also see our main guide on Case Allocation and Gatekeeping:
Case Allocation and Gatekeeping
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Michael Robinson © 2014
Family law information for parents whose children are resident in England and Wales
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