Transferring proceedings - overview

Since the implementation of the Children Act 1989 (ChA 1989), the court structure has been simplified. It has three tiers:

The family proceedings court’s powers are limited in that it is not competent: to consider property matters; where the proposed applicant is under 18; or where an application for leave is made by a person under the age of 16.

Cases may be transferred across to a lower court or up to a higher court to determine a particular issue. Once that issue has been determined the case may well return to the original court. Prime considerations are minimising delay and the efficient administration of justice.

The distribution and transfer of work between the family courts is governed by the Allocation and Transfer of Proceedings Order 2008 which sets out the criteria to be considered.

Procedure

Where an application to transfer is made and refused, there is no appeal, but an application can be made for transfer to the court to which the original application was made. The allocation of proceedings between the different tiers of judiciary is governed by the Practice Direction (family proceedings) (allocation to judiciary) 9 February 2009.

Transfers between member states of the EU

Such transfers are governed by the provisions of Art 15 of Brussels II bis (Council Regulation (EC) No 2201/2003) and can occur when a court in a member state considers that another member state would be better placed to hear the case or a particular aspect thereof. In the instance of proceedings relating to a child, the transferring of the case should be in the best interests of the child concerned. Where there are concurrent proceedings in more than one member state, there is provision under Art 19(2) for member states to decline jurisdiction or stay the proceedings in their particular state as well as provide for transfer.