This page is essential reading that forms part of research that is required ahead of submitting an application to join the magistracy.
As family court cases are heard in private, you will not be able to visit a court before you apply. Therefore, carrying out research into the role of a family magistrate is essential. The information contained within this document is drawn from guidance for newly appointed magistrates.
As part of the application to become a family justice you will be asked to submit reflections based on your research into the topic. This document should be used in conjunction with the other additional resources set out on the magistrate’s recruitment website.
Organisation of the family court
There are four tiers of the judiciary in the family court
- The High Court Bench
- The Circuit Bench
- The District Bench
- The Justices’ tier (magistrates)
The Justices’ tier of the family court is typically composed of three magistrates and a legal adviser, who advises magistrates on the law, practice, and procedure. Magistrates who sit in the family court are referred to as Family Justices.
Jurisdiction of the family court
The Children Act 1989 provides the basis for most applications in the family court. At its heart it states that the child’s welfare must be the court’s paramount consideration when it is deciding any issue in relation to a child’s upbringing or property. Magistrates also have powers to make protective and occupation orders, to protect ‘associated persons’ and regulate the occupation of the family home.
There are rules, orders and statutes, which govern the law and procedures in the family court. The main statutes that may need to be considered within the role of family magistrate are:
- Domestic Proceedings and Magistrates Courts Act 1978
- Children Act 1989
- Family Law Act 1996
- Adoption and Children Act 2002
Magistrates do not need to have legal qualifications, they are advised in court on matters of law, practice, and procedure. This advice is provided by professional lawyers authorised by the Lord Chief Justice, called justices’ legal advisers (or legal advisers for short). Therefore, there is no expectation to read these statutes in your role as a magistrate.
The common types of cases heard in the family court
The work of the family division is varied and has an impact on a wide cross-section of society. The common types of cases heard in the family court are:
- Public law cases are those brought by the state, usually in the form of the Local Authority. They involve state intervention in family life, which is necessary to protect the welfare of the child who is the subject of the proceedings. For example, this could include care and/or supervision order applications.
- Private law cases are brought by private individual family members. The applicant is unable to resolve the issue concerning the child and so asks the court for an adjudication. For example, these cases may include applications for child arrangement orders, which will set out who the child is to spend time with and/ or where they will live.
- Family Law Act (1996) cases are commonly heard by magistrates in the family court. This includes non-molestation orders to prevent domestic violence and occupation orders to keep a spouse or other family member out of the family home.
Other work handled in the family court:
- Declaration of parentage (allowing a court on application to make a declaration that a named person is the parent of another named person)
- Applications for Parental Responsibility
- Placement and adoption (orders giving parental rights and duties in respect of a child to adoptive parents)
- Enforcement (concerning for example):
- Orders for financial provision for spouses
- Child arrangement orders
General principles in family cases
As a Family Justice, you will hear all the evidence given in court and follow a structured decision-making process, informed by case law, to reach a fair decision. You will be advised on points of law by a legal advisor who sits in court with you. Some of the re-occurring principles which arise in family cases are:
Human Rights Act 1998
The main rights guaranteed by the European Convention on Human Rights that are likely to be raised in family courts are enshrined in the following articles:
- Article 6: Right to a fair trial. It sets out the entitlement of everyone to a fair hearing within a reasonable time by an independent and impartial tribunal established by law.
- Article 8: The right to respect for private and family life. Any interference with family life must be in accordance with the law, pursue a legitimate aim and be necessary and proportionate. Most applications involving children engage Article 8 and must be justified in terms of child protection and shown to be necessary and proportionate.
- Article 5(1): The right to liberty and security. Such rights are engaged when the court is asked to deal with a secure accommodation order or committal for breach of an order, e.g., an occupation order. Both types of order are recognised as legitimate in appropriate circumstances.
Diversity and fair treatment
When taking the Judicial Oath, a newly appointed justice swears to ‘do right to all manner of people after the law and usages of this realm, without fear, favour, affection or ill-will.’ Therefore, a magistrate must respect the diversity of lifestyles that exist in modern society and that no single-family model is considered the ‘norm.’
Magistrates in the family court must be particularly vigilant to the diversity of our society. The court and all parties must identify at the earliest possible stage in proceedings whether a party or witness is a vulnerable person. Moreover, it must be considered whether a party’s vulnerability is likely to reduce their ability to participate in proceedings and whether a party or witness’ vulnerability is likely to diminish the quality of their evidence. All appointed magistrates will receive training for these instances and will receive support from court staff and legal advisors.