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

The Court of Appeal reaffirmed that the family court has wide and flexible powers under section 31E MFPA 1984 to make orders that could be made by the High Court where those orders are incidental or supplemental to family proceedings properly before the family court. Judges and magistrates of the family court should therefore approach applications on the basis that they have power to make incidental or supplemental orders unless the Rules or Presidential Guidance reserve the remedy to a higher forum or level of judge.

The court held that an injunction directing the father to cooperate so as to effect transfer of parental controls on the children’s Apple accounts was an incidental order supporting the care orders and was within the family court’s powers. The judge at first instance was wrong to decline the application on the basis that she lacked jurisdiction as a circuit judge; the appeal was allowed and the matter remitted for reconsideration by the family judge in the light of up-to-date information.

Background and parties:

• The appeal arose from care proceedings concerning two brothers, B (15) and A (12), which followed private law litigation between the parents and findings of controlling and alienating behaviour by the father. The local authority issued public law proceedings under section 37 Children Act 1989 and interim care orders were made in February 2022. The final hearing before Her Honour Judge Gargan took place in May 2023 and care orders were made in June 2023.
• Applicants and respondents included the mother (who applied for an injunction directing the father to provide Apple ID and to cooperate to transfer parental controls), the local authority, the children (A represented by a guardian and B separately represented) and the father.

Nature of the application:

• (i) The mother sought an injunction requiring the father to provide Apple ID details and otherwise to cooperate to transfer parental controls on the children’s Apple devices, on the basis that the father retained control and was undermining monitoring and safeguarding.

Procedural posture and issues:

• (ii) The judge determined the injunction application at the end of her extempore judgment on 26 June 2023 but declined to grant it on the basis that, as a circuit judge not authorised under section 9 to sit as a High Court judge, she lacked jurisdiction to make the order. The Guardian obtained permission to appeal.
• The Court of Appeal was asked to consider (a) the correct interpretation and scope of section 31E(1)(a) MFPA 1984, (b) whether that provision permits judges of the family court at all levels to make incidental or supplemental orders of a kind that could be made by the High Court, and (c) whether the injunction as framed required High Court involvement because of any implied involvement of Apple.

Court’s reasoning:

• (iii) The court analysed the statutory framework (Part 4A of MFPA 1984, section 31A to 31P, Part 5 on distribution and transfer of family business), the Family Court (Composition and Distribution of Business) Rules 2014 and the President’s Guidance (2014 and 2018). It emphasised that the family court is a unified court created to exercise a wide range of family jurisdiction and that section 31E permits the family court to make orders which could be made by the High Court when such orders are incidental or supplemental to proceedings properly before the family court.
• The court set out the practical test: first, are the proceedings properly family proceedings; second, is the order incidental or supplemental to substantive orders in those proceedings; third, is the remedy reserved to a higher level of judge by the Rules or Guidance; and fourth, is the application one that must be commenced in the High Court. If yes to the first two and no to the others, the power exists.
• Applying that approach, the Court of Appeal concluded the injunction was ancillary to the care orders and fell within the family court’s powers; any suggestion that the order would involve Apple did not alter the conclusion. The first-instance judge’s reasoning that the family court lacked jurisdiction as a circuit judge was incorrect.

Wider context:

• The court reiterated that family judges should not be deterred from making incidental and supplemental orders that give effect to their decisions, subject to the limits in the Rules and Presidential Guidance, and that transfer to a higher level should be avoided where it would cause unnecessary delay or expense.

The appeal was allowed. The Court of Appeal held that section 31E MFPA 1984 permits judges of the family court to make incidental or supplemental orders that could be made by the High Court when such orders give effect to substantive decisions in family proceedings properly before the family court. The first-instance judge was wrong to refuse the injunction application on the basis that, as a circuit judge without section 9 authorisation, she lacked jurisdiction. The matter was remitted to the family judge to determine the mother’s application on up-to-date information.

Appeal from the Family Court at Luton (Her Honour Judge Gargan) LU22C50017. Final hearing concluded 23–26 May 2023 and judgment / care orders delivered 26 June 2023 in the Family Court. Permission to appeal granted by Peter Jackson LJ. Appeal heard before the Court of Appeal (Civil Division), judgment delivered 11 January 2024 (this decision: [2024] EWCA Civ 2).