Rights of audience in the Single Family Court

Rights of audience in the Single Family Court

Issued on 10 September 2014

Status

This guidance note is issued to provide clarity to our regulated community regarding the creation of the new Family Court and the fact that it has had no impact on solicitor’s higher rights of audience.

Who is this guidance relevant to?

This guidance note is relevant for all solicitors involved in family law proceedings.

Background

On 22 April 2014 the Single Family Court was created to replace the previous three-tier family court structure consisting of the Family Proceedings Court (Magistrates), the County Court and the High Court (Family Division). The new Family Court is able to hear all family proceedings except for a limited number of matters exclusively reserved to the High Court. The judges capable of sitting in the new family court include lay magistrates, District Judges, Circuit Judges, Recorders, High Court judges and above.

Under the old three-tier family court structure, Solicitors and Registered European Lawyers (RELs) had full rights of audience in the Family Proceedings Court (Magistrates) and the County Court. In relation to High Court matters they required Higher Rights of Audience in accordance with the Higher Rights of Audience Regulations.

We have been asked by the Law Society to clarify the impact of the creation of the Single Family Court on Solicitors and RELs rights of audience. They are keen to ensure that solicitors rights of audience are preserved.

Having assessed the approach taken by other regulators and taken legal advice, our view is that the impact of the changes are:

  • Solicitors will have full rights of audience in the Family Court irrespective of the judge sitting and
  • Solicitors and RELs will continue to need their Higher Rights of Audience to appear in relation to reserved areas dealt with exclusively by the High Court (Family Division).

Amendment to our current rights of audience regulations is not required. However, in order to provide clarity to our regulated community, we have decided to issue guidance on our website to state that the creation of the new Family Court will not impact on solicitor’s higher rights of audience.

The Principles

Under s12(1)(a) Legal Services Act 2007 (LSA), "the exercise of a right of audience" is a reserved legal activity, which only an authorised person can carry out.

S18(1)(a) of the LSA defines an authorised person as being someone whom an approved regulator authorises; under schedule 4 of the LSA the Law Society is an approved regulator with regard to rights of audience.

The Law Society, via the SRA, imposes requirements on solicitors to fulfil before it authorises them to appear in the High Court and above. It does not do so with regard to the County or lower courts.

Therefore all solicitors are able to conduct advocacy work in the lower courts.

Section 31A of the Matrimonial and Family Proceedings Act 1984 (MFPA) sets up the Family Court. The MFPA does not specifically state whether the Family Court is an equivalent of a County or High Court. Indeed there are elements of both. S31C allows its judges to come from the High Court and County Court; s31E specifically states that the Family Court has both High and County Court powers.

S31I(1) allows the High Court to take over proceedings by ordering a transfer from the Family Court. Therefore, the Family Court is not a High Court in itself.

S31K(7) states that appeals from the Family Court, which are made to the Court of Appeal, are subject to the same rules as those which apply to appeals from the County Court to the Court of Appeal.

Therefore, the Family Court is explicitly made separate from the High Court. It should not be considered a High Court, and the provisions for higher rights do not apply to it.1

The Outcomes / Guidance Note

Higher Rights of Audience: Single Family Court

On 22 April 2014 the new single Family Court was created. The Family Court will deal with all family cases, including all the work previously dealt with in the county courts, the Family Proceedings Court and most of the work of the High Court (Family Division) apart from a limited number of matters which will be exclusively reserved to the High Court (Family Division). Solicitors will have full rights of audience in the Family Court, irrespective of the judge sitting.

Solicitors will continue to need a Higher Rights of Audience qualification to appear in open court in relation to reserved areas dealt with exclusively by the High Court (Family Division).

1. Appeals from the County Court to the Court of Appeal are limited to those with a major principle or have some other compelling reason – CPR 52.14.