K (Children) (Powers of the Family Court), Re

The family court is a single, unified court with wide and flexible powers. Where family proceedings have been properly issued, the allocated judge may make incidental or supplemental orders of a kind available under the High Court’s inherent powers when needed to give effect to substantive orders. This does not give the family court original jurisdiction over matters reserved to the High Court. Under section 31E of the Matrimonial and Family Proceedings Act 1984, the court should consider whether the proceedings were properly issued, whether the order is incidental or supplemental, and whether the remedy or application is reserved to a higher judicial level or the High Court. Whether the order should be made remains a matter of welfare, fairness, necessity and proportionality.

Care orders were made for two brothers, with plans for them to remain in a family placement. The mother sought an injunction requiring the father to co-operate in transferring parental controls on the children’s Apple ID accounts. The Family Court at Luton declined the application, holding that a circuit judge without authorisation to sit as a deputy High Court judge lacked power to grant it.

The Children’s Guardian appealed. The local authority and mother supported the appeal. The central issue was whether the family court, and the allocated circuit judge, had power under section 31E(1)(a) of the Matrimonial and Family Proceedings Act 1984 to make the injunction as an incidental or supplemental order supporting the care orders.

The appeal was allowed and the mother’s application was remitted to the judge for determination in light of up-to-date information.

1. Statutory framework. The family court is a single, unified court. Parliament intended it to have full and flexible powers, subject to specific restrictions in the Family Court (Composition and Distribution of Business) Rules 2014, the allocation guidance and the provisions reserving particular matters to the High Court. Once proceedings have been properly issued in the family court, judges and magistrates have parity as to the orders they may make, subject to restrictions on particular remedies.
2. Applicable questions. The judge should ask: whether the proceedings were properly issued; whether the order is incidental or supplemental to the substantive orders sought; whether the remedy is reserved to a higher level of judge; and whether the application is reserved to the High Court. If the first two answers are yes and the latter two are no, the power exists. Whether it should be exercised depends on welfare and fairness and, where Convention rights are affected, necessity and proportionality.
3. Application. The injunction concerned the exercise of parental responsibility. Before the care orders, the mother could have sought a specific issue order under section 8 of the Children Act 1989. After the care orders, the local authority held parental responsibility under section 33(3), including power to regulate the parents’ exercise of it. The father’s obstruction could hinder the local authority’s ability to safeguard and promote the children’s welfare under section 22(3)(a). The requested order was incidental to the care orders, was not an exercise of substantive inherent jurisdiction, and was not reserved to a higher level of judge. Possible involvement of Apple did not alter the analysis.
4. The judge’s lack of section 9 authorisation was therefore irrelevant. A transfer to a higher level within the family court remained possible for a pressing reason, but delay and expense required consideration. Several months having passed, the application was remitted rather than determined by the Court of Appeal.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 2, the appeal was allowed. The court held that the circuit judge had power to determine the injunction application and remitted it for determination.
• Family Court at Luton: Her Honour Judge Gargan declined the injunction on 26 June 2023, considering that a circuit judge lacked jurisdiction to make it without High Court-level authorisation.