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Commencement and Transfer of Proceedings

Document Cited authorities 20 Cited in Related
AuthorSafda Mahmood/Julie Doughty
Pages189-194
14 Commencement and Transfer of Proceedings

14.1 General rules

Under section 1 of the Family Law Act 1986, a child in respect of whom an application is made must be either ordinarily or habitually resident in England and Wales, or physically present within the jurisdiction of the court at the time of the application. In private law, a section 8 order may be made where the court has jurisdiction under the BIIR, or in connection with matrimonial proceedings or founded on habitual residence of the child.

The general rule is that private law applications under the CA 1989 must be made to the Family Court, unless brought under the inherent jurisdiction of the High Court, the Hague Convention or the BIIR.

The distribution of business in the Family Court is set out in Schedule 1 to the Family Court (Composition and Distribution of Business) Rules 2014, between lay justices, district judges, circuit judges and Judges at High Court level. This is supported by the President’s Guidance on Allocation and Gatekeeping for Proceedings under Part II of the Children Act 1989 (Private Law)
(22 April 2014), issued in accordance with rule 21 of the Family Court (Composition and Distribution of Business) Rules 2014 and the President’s Guidance on Allocation and Gatekeeping for Care, Supervision and other Proceedings under Part IV of the Children Act 1989 (Public Law) (22 April 2014), issued in accordance with rule 21 of the Family Court (Composition and Distribution of Business) Rules 2014.

It is worth noting the recent case of Re T [2018] EWCA Civ 1657, where the Court of Appeal stated that cases involving allegations of sexual abuse that may result in severing the child’s relationship with his parent, should not ordinarily be allocated to lay justices, and instead, should be allocated to a District or Circuit Judge.

14.2 Applicants and allocation of family case

There are specific provisions concerning in which court certain family proceedings must be commenced. These are considered further below.

Table 14.1 Commencement of proceedings

CA 1989 (or other legislation as specified)

Type of order Applicant

Parental responsibility, by parent or step-parent

Father or step-parent or ‘other female parent’ can apply for order (section 4(1)(c), section 4A(1)(b), section 4ZA(1)(c)); any person with parental responsibility or child (with leave) can apply to terminate (section 4(3), section 4A(3), section 4ZA(6))

Section 4, section 4A

Section 5 Appointment of guardian

Any person may apply (section 5(1))

Section 6 Termination of appointment of a guardian

Application can be made by any person with parental responsibility or the child (with leave)
(section 6(7)(a), (b))

Section 8 Any section 8 order

Application can be made by any...

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