Strand, London, WC2A 2LL
B e f o r e :
|- and -
Mark Warwick QC (instructed by BP Collins LLP) for the Respondent
Hearing date: 25 April 2017
Crown Copyright ©
Mr Justice Mostyn:
i) It is very important for the family court, which has now been in existence for nearly four years, to gain the respect it deserves as the sole, specialist, court to deal with virtually all family litigation. Except as specified in the Schedule to the Guidance, cases should only need to be heard in the High Court in very limited and exceptional circumstances (para 30).
ii) There is no justification for transferring a case from the family court to the High Court merely because of some perceived complexity or difficulty. The proper course is to re-allocate the case for hearing in the family court by a "judge of High Court level" or, if appropriate, a judge of the Family Division. It is, for example, virtually impossible to conceive of a divorce or financial remedy case which needs to be transferred from the family court to the High Court (para 30(c)).
iii) When a freezing order is sought, the application should always be heard in the family court, normally at District Judge level, but may be allocated to a judge of High Court level (para 24).
And in para 16 he reminded us of the important terms of FPR 5.4 namely:
"(1) Where both the family court and the High Court have jurisdiction to deal with a matter, the proceedings relating to that matter must be started in the family court.
(2) Paragraph (1) does not apply where – (a) proceedings relating to the same parties are already being heard in the High Court; (b) any rule, other enactment or Practice Direction provides otherwise; or (c) the court otherwise directs."
"The High Court or, subject to the county court limit, the county court can enforce a charging order by an order for sale. Provision in respect of applications for an order for sale is made in rule 73.10C CPR."
CPR 73.10C provides:
(1) Subject to the provisions of any enactment, the court may, upon a claim by a person who has obtained a charging order over an interest in property, order the sale of the property to enforce the charging order.
(2) Where the charging order was made at the County Court Money Claims Centre a claim for an order for sale under this rule must be made to the judgment debtor's home court.
(3) Subject to paragraph (2) a claim for an order for sale under this rule should be made to the court which made the charging order, unless that court does not have jurisdiction to make an order for sale.
"Section 31E(1)(a) of the 1984 Act provides that "In any proceedings in the family court, the court may make any order … which could be made by the High Court if the proceedings were in the High Court." This does not permit the family court to exercise original or substantive jurisdiction in respect of those exceptional matters, including applications under the inherent jurisdiction of the High Court, that must be commenced and heard in the High Court. It does, however, permit the use of the High Court's inherent jurisdiction to make incidental or supplemental orders to give effect to decisions within the jurisdiction of the family court. Thus, for example, the family court can: (a) issue a bench warrant to secure the attendance of a judgment creditor at an enforcement hearing: see Re K (Remo: Power of Magistrates to issue Bench Warrant)  EWFC 27); and (b) require a party to use his or her best endeavours to procure the release of the other party from mortgage covenants: see CH v WH  EWHC 2379 (Fam)."