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Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009

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"." This is a considerably stiffer test than the normal test that applies on an application to appeal to the Court of Appeal from a first instance matter, which is encapsulated in the question: does the appeal have a real prospect of success? The slope of the cliff face that the appellant confronts after an adverse decision in the county court—in which he found himself in consequence of an adverse family proceeding decision in a magistrates’ court—will be steep. This has been well expressed by Lord Justice Brooke in the Court of Appeal in the case of Tanfern Ltd v Cameron-MacDonald. He said: ""It will no longer be possible to pursue a second appeal to the Court of Appeal merely because the appeal is ‘properly arguable’ or ‘because it has a real prospect of success’ … The new statutory provision is even tougher—the relevant point of principle or practice must be an important one—and it has effect even if the would-be appellant won in the lower court before losing in the appeal court"." It follows that, with respect to the scope of this order, the combination of its terms together with the text of Section 55 of the Access to Justice Act 1999 make it impossible to be heard by a High Court judge and fairly close to impossible to be heard by the Court of Appeal. In these circumstances, can the Government really be confident that they have met the terms of their own test that cases should be determined at the lowest appropriate level of the court system? There must be a powerful argument for stating that the scale of the barrier to advancing family proceedings cases beyond county court level is inappropriately demanding. The new rules in the order with respect to stating a case from the magistrates’ courts to the High Court pose different problems. The mechanism that the Government have chosen to substitute the description "county court" to "High Court" is in Section 56(7) of the Access to Justice Act 1999. I hope that noble Lords will forgive me for turning to that Act to quote briefly from Section 56. Subsection (1) states: ""The Lord Chancellor may by order provide that appeals which would otherwise lie to—""(a) a county court,""(b) the High Court, or""(c) the Court of Appeal,""shall lie instead to another of those courts, as specified in the order"." Then, Section 56(7) states: ""For the purposes of this section an application to have a case stated for the opinion of the High Court constitutes an appeal"." On the basis of those two provisions, paragraph 3.6 of the Explanatory Memorandum comments: ""By virtue of the new section 111A of the 1980 Act in article 4(3) of the New Order, an application to have a case stated under section 111 of the 1980 Act in relation to family proceedings will be replaced by a regular appeal to a county court on restricted grounds that the decision was wrong in law or in excess of jurisdiction. It is a county court which will decide whether or not the decision of the magistrates’ court is wrong in law or in excess ""of jurisdiction. The two stage process which exists at the moment whereby an application is first made to the magistrates’ court and then that court submits the document to the High Court will be replaced by one notice of appeal outlining the restricted grounds of appeal to a county court"." It is clear from paragraph 3.37 of the Explanatory Memorandum that the Ministry of Justice is not entirely confident of its ground. It states: ""The Ministry of Justice considers that the reference to an application to have a case stated in subsection (7) is to the whole case stated procedure and not only to the application to the magistrates' court"." I respectfully submit to the department that its hesitation is understandable. On the plain words of Section 56(7), the narrower interpretation is, at least, equally plausible. The frailty of the department’s approach is, moreover, amplified when one sets its interpretation in a broader context. The case stated procedure gives an applicant a direct route to the Divisional Court, which comprises a guaranteed hearing by two, sometimes three, judges of at least High Court rank. Section 56(7) does not just apply to family proceedings; it applies to all non-criminal matters. Can it really be the case that Parliament granted the Lord Chancellor the right to do away with a centuries’ old jurisdiction, the exclusive right hitherto of the Court of King’s Bench, by order? My view is further reinforced by paragraph 3.8 of the Explanatory Memorandum. The first sentence reads: ""Appeals by way of case stated are an example of the supervisory jurisdiction of the High Court over inferior courts. A county court is an inferior court and it would therefore not be appropriate for an appeal to a county court to be by way of case stated"." So the appeal to the county court would not, as a matter of constitutional principle, be by way of case stated. However, paragraph 3.8 continues: ""As section 56 specifically permits appeals by way of case stated to be moved from the High Court to a county court, the view of the Ministry of Justice is that it would be a proper exercise of the section 56 power to provide that the application to have a case stated should be a regular appeal but on the restricted grounds referred to in the new section 111A of the 1980 Act in article 4(3) of the New Order"." What does Section 111A of the 1980 Act in Article 4(3) of the new order state? At paragraph 2, it states: ""Any person who was a party to any proceeding before the court, or is aggrieved by the order, determination or other proceeding of the court, may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by appealing to a county court"." So, in effect, we have a case stated procedure whose final arbiter is an inferior court. Is that not a contradiction in terms? I should add that the same hesitation applies to the government scheme under new Section 111A with respect to the degree of inaccessibility to the Court of Appeal by an appellant from a county court decision. I can comfort the Minister to this extent: we shall not be voting against the order. I recognise that the Lord Chancellor has consulted the senior judges and that wider consultations have been conducted with those with far more experience in family law matters than I. However, I earnestly hope that the department will consider the contents of the order again in the light of what I have said, if only to reassure itself that my fears are wholly imaginary.