That the draft order laid before the House on 25 February be approved.

Relevant Document:7th Report from the Joint Committee on Statutory Instruments.

My Lords, I beg to move that the draft Access To Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 be approved.

Subject to the House’s approval, this statutory instrument will apply to appeals from decisions of magistrates’ courts’ family proceedings courts, known as FPCs. The proceedings affected are those which, by virtue of Section 65 of the Magistrates’ Courts Act 1980, are or may be treated as family proceedings for the purposes of that Act and proceedings under the Child Support Act 1991.

This statutory instrument will change the current destination of appeals from decisions of FPCs by providing that appeals from FPCs shall lie to a county court instead of to the High Court. It will also disapply appeals by way of case stated from family proceedings to provide a single process of appeal from decisions of FPCs.

There are two main objectives of this reform. The first is to clarify and simplify the appeals process by removing the different processes to provide a single process of appeal from decisions of FPCs. This would make the appeal procedure from FPCs more user-friendly and easier to understand. The second objective is to optimise the use of available judicial resources by ensuring that, where appropriate, cases are determined at the lowest most appropriate level of the court system. This would enable the High Court to focus on matters that genuinely require its expertise.

The current appeals processes from FPCs are complex, having been developed piecemeal over the years in a number of different statutes. First, there are different statutory provisions for different types of proceedings giving rights of appeal from decisions of FPCs. These are referred to in Articles 2 and 3 and 6 to 9 of the instrument. There are different ways of starting these appeals. These include filing a notice of appeal or lodging a notice of motion. Secondly, where there are no statutory rights of appeal against a decision of a family proceedings court, the means of challenging that court’s decision, other than by judicial review, is by an application to have a case stated for the opinion of the High Court, which requires a party to make an application to the FPC asking the justices to state their case for the opinion of the High Court.

In practice, these different processes can be complicated and difficult to understand, particularly to the litigant in person. For example, a family proceedings court makes a residence order in favour of a mother so that the child lives with her with contact provision in order that the father can see the child every Saturday. At the same time, the FPC makes a maintenance order compelling the father to pay maintenance to the mother. The father of the child decides to appeal against the FPC’s decisions about the amount of contact with the child and the level of maintenance to the mother. To appeal against the contact order, the father would have to file a notice of appeal in the family proceedings court in accordance with Section 94 of the Children Act 1989. However, to appeal against the maintenance order, the father would have to lodge a notice of motion under Section 29 of the Domestic Proceedings and Magistrates’ Courts Act 1978.

In the mean time, in my example, arrears of child support maintenance have mounted, which result in the magistrates’ court making a liability order. The father wants to challenge that liability order by appealing against it. The means of challenging it is for the father to make an application to have a case stated for the opinion of the High Court. As I hope the House will see from this example, the father would have exhausted three different processes to appeal against three decisions made by the same court in related proceedings concerning the same family. We argue that this instrument will simplify this complex procedure by providing a single process of appeal.

The Government are committed to delivering fair and simple routes of access to justice by, among other things, using available judicial resources to best effect in order to provide effective, efficient and speedy civil and family court processes and procedures. The purpose, of course, is to promote public confidence in our court system and provide user-friendly court processes. This was the principle that underpinned our policy underlying two successful public consultations. The first, focusing judicial resources appropriately—the right judge for the right case—was a joint government and judicial initiative aimed at reducing the workload of the High Court Bench to ensure that cases are determined at the lowest most appropriate level of the court system commensurate with complexity.

Part of those proposals were implemented in November last year with the introduction of the family law Allocation and Transfer of Proceedings Order 2008, which sets out criteria for starting family proceedings at each level of court. One of the benefits of that allocation order is that more family cases will be started in the family proceedings courts and transferred from the county courts to the family proceedings courts. This would pave the way for county courts to have more capacity to hear more cases currently heard by the High Court Bench, including appeals from the decisions of family proceedings courts, which are currently heard by the High Court, and which this statutory instrument seeks to achieve. Recent statistics indicate that appeals from the family proceedings courts to the High Court are low. In 2008, a total of only 45 appeals were made. However, this figure does not include appeals issued in the district registries but the Government consider that the provisions of this statutory instrument are unlikely to lead to a significant increase in the workload of the county courts.

The second public consultation which underpins this statutory instrument is the 2006 family procedure rules consultation. This consultation sought public views on proposals to introduce a single form of appeal notice, reroute appeals from FPCs from the High Court to the county court and abolish case stated appeals in family proceedings in order to provide an effective operation of the family justice system. As with the public consultation that I have just mentioned, a clear majority of respondents supported the policy proposals underlying the appeals provisions of the 2006 family procedure rules consultation. Comments provided by respondents formed the basis of the initial draft of this statutory instrument. The Government consulted further with more than 200 stakeholders, including the judiciary, legal professional bodies, the Family Procedure Rule Committee, consumer and representation bodies, charity organisations and other government departments with an interest in the proposals. That consultation sought views on the scope, the practicalities and the aims of this instrument. A majority of respondents who chose to comment supported the provisions of this statutory instrument, and some provided helpful comments which informed the final draft.

The changes brought by this statutory instrument support an effective and efficient appeals process in the family justice system. It will clarify and simplify the appeals process, making it more user-friendly for court users. It will make more efficient use of available judicial resources by reducing pressures on the High Court Bench to enable it to concentrate on more complex cases. We hope that these changes will contribute to our commitment to deliver fair and simple routes of access to justice. I therefore commend this instrument to your Lordships’ House.

My Lords, this order is, I understand, the second of two orders that seek, in the Minister’s words, to simplify and rationalise procedures and appeals in family proceedings under Section 65 of the Magistrates’ Courts Act 1980 and the Child Support Act 1991.

The first order, the Allocation and Transfer of Proceedings Order 2008, changed the criteria for commencing family proceedings. As a consequence a greater number of family cases will be initiated in magistrates’ courts instead of in the county courts, thereby, at least to some degree, freeing the latter to adopt the extra responsibilities bestowed on them by the order now before us.

This order, in the words of its Explanatory Memorandum,

“changes the current destination of appeals from decisions of magistrates’ courts in so far as family and related proceedings are concerned, by providing that appeals shall lie to a county court instead of to the High Court”.

The aim is twofold: first, again in the words of the Explanatory Memorandum,

“to make more efficient use of available judicial resources by re-routing appeals to a lower court so as to reduce pressure on the High Court bench and to clarify and simplify the appeals process by removing the different processes”.

I observe in passing that, admirable though the motive is to reduce the workload of the High Court Bench, that does not, in respect of the matters under review, appear unduly onerous. In 2008, as the Minister has already observed, the number of relevant appeals amounted to 45. Moreover the simplification of the appeals process is mainly a matter dealt with by the provisions of the first order and the work of the family proceedings rules committee, exercising its responsibilities under Section 40 of the Matrimonial and Family Proceedings Act 1984. A third motive is also cited, which is that the order will help to optimise the use of available judicial resources by ensuring that cases are determined at the lowest appropriate level of the court system. As a principle, that is unexceptionable. Whether that is achieved in practice in this order is a matter to which I now turn.

As we have heard, there are two ways in which a decision can be appealed against in a magistrates’ court with respect to these matters. First, where there exists a specific statutory right of appeal to the High Court; and, secondly, in the absence of such a right a decision can be challenged by an application to have a case stated for the opinion of the High Court under Section 111 of the Magistrates’ Courts Act 1980.

As regards the first category, the legislative manner in which the description “county court” is substituted for “High Court” is wholly appropriate. Were it not for Section 55(1) of the Access to Justice Act 1999, I would have had nothing more to say about it. Section 55(1) is side-headed “Second appeals”. It states:

“Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it

(2) This section does not apply in relation to an appeal in a criminal cause or matter”.

My Lords, I see the order as sensible. It removes unnecessary complication. As the Minister said, it is a matter likely to cause confusion when we have a system that involves an appeal to the High Court in some cases and what is in effect an appeal by way of case stated in others. It also seems to be reasonable to transfer appeals from the High Court to the county court. The noble Lord, Lord Kingsland, referred to Sections 55 and 56 of the Access to Justice Act. They are two sections that will come before your Lordships' House in business fixed for tomorrow, in which they are likely to be matters of some importance.

In this case, I am prepared to accept that it is reasonable for appeals to be transferred to the county court. That reduces the pressure on the Bench, although that pressure seems not to be very great at present. It also has some practical advantages. For example, county courts are likely to reduce the distance of travel for parties and their lawyers and to reduce the costs. That is an important factor, particularly now that the Government have gone such a long way towards strangling civil legal aid.

I note, as did the noble Lord, Lord Kingsland, paragraphs 3.7 and 3.8 of the Explanatory Memorandum. They raise possible legal doubts about the powers under Section 56 of the Access to Justice Act and the proposals under the order to convert the case stated into an ordinary appeal. I see no reason here to differ from the view of the Ministry of Justice, as expressed in the memorandum, that the process is legitimate. If it is not, that is a problem that the Government will have to face up to.

The order makes minor but relatively useful changes, on balance. I am therefore prepared to accept it as it stands.

My Lords, I am very grateful to both noble Lords for the care that they have taken to consider the order in detail. I am grateful for the unrestricted support from the noble Lord, Lord Goodhart, and for the final comment of the noble Lord, Lord Kingsland, that he does not intend to oppose the order today. As Shakespeare had it,

“for this relief much thanks”.

I congratulate the noble Lord, Lord Kingsland, on a bravura performance in his analysis of this important order. Despite his concerns about two aspects—first, about second appeals, and, secondly, what he thinks he detects is a lack of confidence by the ministry in its analysis—the judiciary at the highest level do not share those concerns. He was good enough to make that point.

My Lords, the noble Lord is quite right to say that a powerful reason for my not pressing this matter any further is the fact that the Lord Chancellor has consulted the senior members of the judiciary. However, one does not know what concerns they raised with him before they signed these matters off. Some concerns may have been expressed—I am not asking the Minister to reveal the answer, even if he knows it; but because I have no knowledge of whether they were advanced, or if they were advanced how powerfully they were put, it would be quite improper of me within the conventions of this House to press the matter further.

My Lords, I have no idea either. They may have taken a Goodhartian view of this issue rather than a Kingsland view.

My Lords, that just demonstrates how much better established the noble Lord, Lord Goodhart, is in your Lordships’ House than I am. He was furnished with the accolade “Goodhartian”. I, by contrast, was not accorded “Kingslandian”, but merely “Kingsland”. The Minister’s judgment is, however, wholly appropriate.

My Lords, the noble Lord does not know how close I was to taking, or how dangerous I thought it might be if I were to take, the adjective any further.

I could again go through what the Explanatory Memorandum says and point out, although not as clearly as the noble Lord, the logic of the ministry’s position. We do not lack confidence in our judgment here—I must make that absolutely clear—and the noble Lord will not be surprised to hear that there will be no chance to look at this order again because it is due to come into force very shortly and, I understand, there will be practice directions from the President of the Family Division and the Lord Chief Justice very soon.

However, we will see how this works, and the noble Lord can rest assured that if any injustice is done either in second appeals or in a case stated, we will reconsider the matter at some stage in the future. We need to give the order a chance. It simplifies the system. It also simplifies the case-stated system in that it is not necessary to get written reasons given by the magistrates, although they will be encouraged to give reasons in each case. Under the case-stated provisions across the law, as I understand it, magistrates could simply refuse to give reasons, and they might or might not be ordered by the High Court to give them.

We are confident that this is a good move for family justice, and once again I commend the statutory instrument to the House.