The formation of a single county court and a family court would significantly change the way judges work, but the details are still a little hazy, says DJ Richard Chapman
I am not usually a fan of new legislation. It means that I have to spend my leisure time reading it, translating it into more user-friendly language and understanding what, if anything, I am going to have to do differently.
In May, just when the weather was good and I was looking to spend a bit more time on the golf course, the Crime and Courts Bill was published. It has now had its second reading (in the House of Lords), and although I have read schedules 9 to 13 of the bill several times, I am still trying to understand where, in the long term, it will take the judiciary.
Aside from all that concerns crime (happily district judges in the county courts do not sit in criminal matters) the essence of the bill is the creation of a single county court and a family court.
A single county court has been on the agenda for some years. It will remove lots of unnecessary procedural complications, particularly relating to where a claim should be issued. During my service as a district judge, I have sat at many different county courts: this bill will mean that I will be a judge in the county court. However, not only will all district judges (and circuit judges) be judges in the county court, so will all the
senior judiciary right up to and including the Lord Chief Justice and also tribunal judges – remember that HMCS converted itself into Her Majesty’s Courts and Tribunals Service in April last year.
What I have not yet fathomed is whether, assuming the bill is enacted, all the various differences in the jurisdiction of the district judge and the circuit judge will disappear. They should do because all judges will be judges in the county court and so will be ‘county court judges’. They should disappear also because so much time is spent researching the question of whether a district judge has a particular jurisdiction, discovering in some cases that the district judge does not have jurisdiction only then to find out that no circuit judge is available at the hearing centre where the case is proceeding. Sometimes, especially when no circuit judge is available, orders are made by district judges when the judge and the legal advisers are ignorant of the fact there is no jurisdiction to make the order – not often, but when it happens it’s inconvenient, wasteful of court time, wasteful of the time of the parties and their legal advisers and of course costs money and further time to put it right. So, this is a good time to abandon the jurisdictional differences.
There is another important aspect of this bill that I have not yet worked out. How will the county court interact with the new family court? Assume that district judges will continue to sit in the places where they now sit, being at various hearing centres of the county court and of the family court. Will all county court judges and family court judges be deployed under the new proposals set out in schedule 13 to the bill to sit in the same place doing both county court and family court work? How will the listing of cases be managed? What will be done with the urgent Children Act without notice application when the only judge sitting at the venue where the application is to be issued has been deployed on that day as a county court judge? A similar question applies when there is an urgent county court application on a family court day. Will listing of cases remain a judicial function so that, among other considerations, when self-representing litigants or indeed represented parties issue an application without a (proper) time estimate, the matter will be referred to a judge to ensure that the matter is given an appropriate time estimate? Many other questions arise and we must all be alive to the consultation processes that presumably will emerge in due course.
The bill is an enabling one that will give the Lord Chief Justice far-reaching powers, but what the bill does not tell us is what criteria it is proposed will apply to the exercise of those powers. Over the years, local practices have developed that suit particular courts and this has been allowed to happen because one size does not fit all. The bigger court centres have different operational requirements to the smaller court centres. Work types and their volumes differ from court to court. There is much detail to be provided before we shall know how the day-to-day practices in our courts will change.
The plans for the new family court are more advanced and some further announcements are expected very soon. I have little doubt, having regard to the speed with which the arrangements are being planned for the proposed new family court, that the extensive recommendations of the Family Justice Review report of the panel chaired by David Norgrove will be implemented. Finally, and slightly off piste, it’s interesting that, following the rejection in the report of the proposal regarding shared care of the children of separated parents, there is already another consultation on that issue. I hope practitioners will respond to it.
Already registered? Login to access premium content