The legal system, explained: the Family Court

Published: 28th Feb 2017

One of the branches of the justice system in England and Wales deals with disputes over marriage and children. These are the Family Court (for the majority of routine cases), and the Family Division of the High Court (for a few specific issues and more complex cases).

Here’s a brief outline of how the family courts work and what happens in them.

What the family courts decide

The Family Court and Family Division deal with all kinds of legal disputes to do with children and the breakdown of relationships.

Most seriously, the Family Court will deal with cases where the government (local councils, in practice) intervenes in a family to protect children from harm. That can lead to the children being taken into care and eventually adopted or placed with extended family.

Family lawyers sometimes refer to this as “public” family law, because it has to do with disputes between individuals and the state. In 2015 almost 15,000 such cases involving 42,000 children. 

But the Family Court also deals with family disputes between individuals. Divorce is a classic example. Working out where children live after their parents split up, and other disputes having to do with children, is referred to as “private” family law (because it’s a dispute between two private individuals). There were 45,000 private family law cases concluded in 2015, involving 164,000 children.

Another side effect of the break-up of a relationship is the question of money. The Family Court can settle questions of who is entitled to what after a marriage or civil partnership ends.

Disputes over regular maintenance payments to help look after children can end up there as wellwhen the parent who’s being asked for money is a high earner, for examplebut that’s rare. There’s a government Child Maintenance Service intended to handle most of those cases. The Family Court can order money to be paid by a parent to support their children, but in practice this usually happens when the dispute is about a lump sum rather than maintenance.

The Family Court also deals with the “vast majority” of orders designed to protect people against domestic violence, according to the Ministry of Justice. The court can issue a “non-molestation order” telling someone not to contact, harass, threaten or be violent to another person such as a former partner. Or it can make an “occupation order” preventing someone from, for example, living in or returning to the family home.

More complex family cases may end up in the Family Division of the High Court. It’s also the venue for some cases involving specific issues such as certain cases of international child abduction, forced marriage, and female genital mutilation.

The structure of the family courts

There used to be various different types of family courts for day-to-day cases, but officially there’s now a single entity just called the Family Court. You still see references to Family Proceedings Courts, for example, or going to the County Courtthis reflects the system as it was before 2014.

Physically, the Family Court has a lot of different locations around England and Wales. This might be a building set aside for this court only, such as the East London Family Court. Or it can be part of a complex that houses different types of courts, such as Bath County Court and Family Court.

The President of the Family Division is also the overall Head of Family Justicein charge of the system of family courts. Sir James Munby has that job until the middle of 2018.

Family judges

Judges of different ranks, from magistrates without legal qualifications to High Court judges, sit in the Family Court. They’re assigned cases based on what type of family dispute it is, and how complicated the dispute is.

Appeals against a decision of one judge will often go to a more senior judge within the Family Court. If the original judge was already quite senior, the appeal will have to be heard by the Family Division of the High Court, or even the Court of Appeal above that.

How the judges are addressed in court, and how they’re dressed, depends on their rank.

There are no juries in family courts.

Differences between the Family Court and other courts

There are plenty of ways in which the Family Court is different from, say, the criminal courts. These are just two of the most significant.

First, any fact in dispute has to be proved on what’s known as the balance of probabilities. This means that, to be treated as having happened, any fact in dispute has to be proved to be more likely than not. It’s also referred to as the civil standard of proofto distinguish it from the criminal standard of proof, in which a jury must be “sure” (or be “beyond reasonable doubt”) to convict somebody.

This difference means that sometimes the Family Court will decide, to take an extreme example, that somebody has killed their child even if a separate criminal trial for murder has resulted in an acquittal. If there were other children in that family, the Family Court may need to make a decision on what happens to them, and to do so would decide on the balance of probabilities whether the parent was responsible for the death.

Second, most hearings concerning matters to do with children are heard in private. Members of the press may attend most hearings, but there are restrictions on how much of what goes on they can report. Judgments in cases heard in private are often published, particularly when important or controversial, with the names of the people involved replaced by letters.

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