SITTING AT MANCHESTER
B e f o r e :
Sitting at Manchester Civil Justice Centre
|Re K (REMO – Power of Magistrates to Issue Bench Warrant)|
Crown Copyright ©
Mr Justice Peter Jackson:
The present case
The legislative and procedural framework
Enforcement action before the magistrates
The Family Court
The current regime
Failure to attend
"(1) In any proceedings in the Family Court, the court may make any order-a) which could be made by the High Court if the proceedings were in the High Court, orb) which could be made by the county court if the proceedings were in the county court"
"38 Remedies available in county courts.
Subject to what follows, in any proceedings in a county court the court may make any order which could be made by the High Court if the proceedings were in the High Court."
Judge Birss determined at  that whilst the section does not confer on the county court a jurisdiction to hear a case it has no jurisdiction to hear, it supplies remedies and orders which the court can make in proceedings properly before it.
(1) In Salekipour v Parmour  EWHC 1466, Garnham J held that the County Court, being a creation of statute, has no inherent jurisdiction and that neither section 23(g) nor section 38 CCA 1984, confers on it jurisdiction to rescind an earlier decision of the County Court on the ground that the decision was obtained or induced by fraud. However, this decision was concerned with jurisdiction and not with a remedy in the course of proceedings that were undoubtedly within the jurisdiction of the court.
(2) The issue of a bench warrant is to secure the attendance at court of the person arrested and detained and is a direction ancillary to the investigation by the court of the relevant issues before it. The person arrested and brought before the court may be found to have been in contempt of court but the exercise of the jurisdiction is not based upon contempt of court but upon ensuring compliance with the direction of the court: Re B  2 FLR 479 per Butler-Sloss LJ (my emphasis).
(3) In MS v PS Case C-283/16, 9 February 2017, the CJEU stated that applications of this kind can, but do not have to be, issued via the Central Authorities, and confirmed that any procedural obstacles or other requirements which do not apply to a local case are invalid. Member States are required to give full effect to the right laid down in Article 41(1) of Regulation No 4/2009 by amending, where appropriate, their rules of procedure. In any event, it is for the national court to apply Article 41(1), if necessary refusing to apply any conflicting provision of national law. This accords with our domestic law, in that the Civil Jurisdictions and Judgments (Maintenance) Regulations 2011 state at Schedule 1 para 4(4):
4(4) For the purposes of the enforcement of a maintenance decision—
(a) the decision shall be of the same force and effect,
(b) the enforcing court shall have in relation to its enforcement the same powers, and
(c) proceedings for or with respect to its enforcement may be taken,
as if the decision had originally been made by the enforcing court.