Court of Appeal moves to reaffirm “wide and flexible powers” of family court in care case

The Court of Appeal has allowed a Guardian’s appeal against a family judge’s conclusion that she did not have jurisdiction to grant an injunction.

In K (Children) (Powers of the Family Court) [2024] EWCA Civ 2 the President of the Family Division, Sir Andrew McFarlane, Lord Justice Peter Jackson and Lord Justice Warby concluded: “It can readily be seen that the judge had the power to make the injunction sought by the mother. […] this was a classic example of an order that was within the power of the family court at any level.”

The issue arose in care proceedings concerning two brothers, B (15) and A (12), which sprang from private law proceedings between their parents.

In a fact-finding judgment in August 2021, the court made strong findings against the father of “alienating, controlling and coercive behaviour”.

In February 2022, the children were removed from their father's care under interim care orders and moved to a maternal family placement.

The final hearing before Her Honour Judge Gargan took place between 23 and 26 May 2023. She announced her decision at the end of the hearing and gave her reasons in a judgment delivered on 26 June 2023.

Care orders were made on the basis of plans, supported by the mother and the Children's Guardian, for the boys to remain in the family placement, said Sir Andrew.

Ahead of the final hearing, the mother had made a formal application for an injunction against the father in the following terms:

"The Father shall by 4pm on 30 June 2023 provide to the Local Authority the details of his Apple ID and password and thereafter shall provide all cooperation necessary to effect the transfer of the parental controls of B and A's Apple ID accounts”.

Sir Andrew noted the application arose from a “long-running issue” about the parental controls to the children's iPhones.

“The mother's case was that the parental controls remained linked to the father's account, resulting in the children having unmonitored and unrestricted access to the internet and all other means of communication via their phones, and to the father being able to track the children's movements”, he said.

Her Honour Judge Gargan determined the injunction application at the end of her extempore judgment on 26 June 2023. She declined to grant it on the basis that, as a Circuit Judge, she did not have the power to do so.

The Guardian appealed, with permission of Peter Jackson LJ, on the following grounds:

The judge was wrong to conclude that she did not have jurisdiction to make the injunction sought under s31E(1)(a) of the Matrimonial and Family Proceedings Act 1984 ('the MFPA 1984'):

1. It was wrong to interpret s31E(1)(a) as requiring such power to be exercised by a Judge of the Family Court sitting as a Deputy (or full) High Court Judge.

2. The case law referred to was wrongly distinguished so as to determine that the power did not extend to a Judge (or magistrates) of the Family Court.

3. It was wrong to conclude that the injunction sought involved Apple in any relevant way and/or that any such involvement would be relevant to the question of jurisdiction.

All the parties submitted to the Court of Appeal that the family court had the power to make the order sought by the mother.

Discussing the case, the Court of Appeal judges noted that the issue about the control of the boys' phones concerned an exercise of parental responsibility.

They said: “Insofar as the judge may have been influenced by the possibility that any order may have been directed against Apple, that was a misunderstanding. The most that was suggested here was that the father should be directed to cooperate with the Apple helpdesk if that was necessary to get the parental controls passed over, and to forward messages received from Apple to the local authority.

“Even if the order would have directly impinged on Apple, that would not necessarily have required the transfer of the case to High Court level.”

Summarising their position, the judges stated:

(1) The family court is a single, unified court within which almost all family proceedings are conducted.

(2) The legislation shows that Parliament intended the family court to have full and flexible powers to achieve its aims, and for family business to be conducted by the court unless there are specific reasons for the High Court to be engaged.

(3) Family business is distributed within the family court to the levels of judge ordained by the Rules, the 2014 Guidance and the 2018 Guidance.

(4) Once a family case has been allocated, there is parity among judges and magistrates of the family court in relation to the orders that can be made, subject only to the limits on remedies that appear in the Schedule 2 to the Rules.

(5) Family proceedings that cannot or should not be commenced in the family court, but must instead be commenced in the High Court, are most conveniently listed in the Schedule to the 2018 Guidance.

(6) When family proceedings have been properly issued in the family court, it is open to the court to make incidental and supplemental orders to give effect to its decisions.

Reaffirming the “wide and flexible” powers of the family court, the judges concluded: “Judges of the family court should not be deterred from making incidental and supplemental orders that are beneficial and fair. They should approach the matter on the basis that they have the power to make such orders unless it is shown by reference to the Rules and Guidance that they do not.

“In this way, effective orders can be made in appropriate cases and delay, expense and duplication of effort can be minimised.”

They also noted, “for completeness”, that it is open to judges and magistrates to transfer a specific case to a higher level within the family court where there is a pressing reason to do so. “But before taking such a step, due consideration should be given to any delay and expense that may be caused by the transfer.”

Allowing the Guardian’s appeal, the Court of Appeal ordered the matter to be remitted to the judge for her to determine the mother's application.

Lottie Winson