The Origin, History and Present Status of the Principal Registry of the Family Division

Published: 01/07/2024 07:00

Everyone knows that Baroness Butler-Sloss ascended from the rank of Registrar at Somerset House to President of the Family Division via the High Court and the Court of Appeal. Wikipedia states, ‘She was appointed a Registrar at the Principal Registry of the Family Division in 1970’. We will show that this is not quite right. In 1970 the Principal Registry of the Family Division (PRFD) did not exist. Baroness Butler-Sloss was appointed a Registrar of the Principal Probate Registry, which was known as the ‘Divorce Registry’ for the purposes of matrimonial proceedings governed by the Matrimonial Causes Rules 1968.

In ‘The Jurisdiction of the Family Court to Determine Property Disputes in Favour of Third Parties’ [2023] FRJ 192, HHJ Evans-Gordon, Nicholas Allen KC and Rhys Taylor say:

‘In November 2020 the President of the Family Division appointed all the then full-time CFC DJs – DJs Cronshaw, Hudd, Jenkins and Mulkis – as Deputy DJs (PRFD). [Continuing in note 15] The Principal Registry lives on pursuant to Family Court (Composition and Distribution of Business) Rules 2014 (SI 2014/840), r 2(1) and as a physical location. First Avenue House is named as the PRFD on the MoJ website. Until very recently, it was used for probate business. The appointment of the CFC full-time DJs as deputies of the PRFD would also suggest that First Avenue House is still formally designated as such. DJ (now CJ) Duddridge was also so appointed but now sits in Chelmsford.?’

We think this is largely correct although the continued existence of the PRFD does not derive from the rules mentioned, and we doubt that it is correct to say that its physical location is First Avenue House (FAH) in High Holborn. However, the observations have led us to engage in some interesting legal archaeology.

The antecedent of the PRFD is the Principal Registry of the Court of Probate which was created by the Court of Probate Act 1857. This provided:

‘4. Testamentary Jurisdiction to be exercised by a Court of Probate.

The voluntary and contentious Jurisdiction and Authority in relation to the granting or revoking Probate of Wills and Letters of Administration of the Effects of deceased Persons now vested in or which can be exercised by any Court or Person in England, together with full Authority to hear and determine all Questions relating to Matters and Causes Testamentary, shall belong to and be vested in Her Majesty, and shall, except as hereinafter is mentioned, be exercised in the Name of Her Majesty in a Court to be called the Court of Probate, and to hold its ordinary Sittings and to have its Principal Registry at such Place or Places in London or Middlesex as Her Majesty in Council shall from Time to Time appoint.

14. Appointment of Officers of the Court of Probate.

There shall be Three Registrars, Two Record Keepers, and One Sealer for the Principal Registry of the Court of Probate, and there shall be One District Registrar for each District Registry herein-after referred to as the District Registrar …

30. Rules and Orders to be made for regulating the Procedure of the Court.

And to the Intent and End that the Procedure and Practice of the Court may be of the most simple and expeditious Character, it shall be lawful for the Lord Chancellor, at any Time after the passing of this Act, with the Advice and Assistance of the Lord Chief Justice of the Court of Queen’s Bench, or any One of the Judges of the Superior Courts of Law to be by such Chief Justice named in that Behalf, and of the Judge of the said Prerogative Court, to make Rules and Orders, to take effect when this Act shall come into operation, for regulating the Procedure and Practice of the Court, and the Duties of the Registrars, District Registrars, and other Officers thereof, and for determining what, shall be deemed contentious and what shall be deemed non-contentious Business, and, subject to the express Provisions of this Act, for fixing and regulating the Time and Manner of appealing from the Decisions of the said Court, and generally for carrying the Provisions of this Act into effect …’

In the same year the Matrimonial Causes Act 1857 was passed. This provided:

‘14 Officers of the Court.

The Registrars and other Officers of the Principal Registry of the Court of Probate shall attend the Sittings of the Court for Divorce and Matrimonial Causes, and assist in the Proceedings thereof, as shall be directed by the Rules and Orders under this Act.’

So, the Registrars of the Principal Registry of the Court of Probate attended the sittings of the new divorce court and assisted in the proceedings. We will show that this arrangement whereby the Registrars sat in the new divorce court, and after 1873 in the Probate Divorce and Admiralty Division of the High Court, continued almost unchanged until county courts were given divorce jurisdiction in 1968.

The Principal Registry of the Court of Probate was sited in Somerset House in 1859. It remained there until 1998. Older practitioners will well recall having to walk through the stored files of wills and grants of probate on the ground floor before ascending to the smoke-filled corridor on the first floor where the Registrars had their chambers. It was in that corridor, which had one public telephone and no conference rooms, that countless cases were thrashed out and settled, the culture then being that the first time serious negotiations to settle took place was at the door of the court.1

In 1873 all the Westminster Courts, including the Court of Probate and the Divorce Court were ‘united and consolidated together’ by the Supreme Court of Judicature Act 1873, s 3. By s 31(5) these courts formed part of the new Probate Divorce and Admiralty Division of the High Court.

By the Supreme Court of Judicature Act 1875, s 16 the Rules of Court set out in the First Schedule to the Act came into operation.

Order LIV, para 2 provided:

‘in the Probate, Divorce, and Admiralty Division a registrar, may transact all such business and exercise all such authority and jurisdiction in respect of the same as under the Act, or the Schedule thereto, or these Rules, may be transacted or exercised by a Judge at chambers except in respect of the following proceedings and matters; that is to say.’

In 1925 the various Judicature Acts 1873–1920 were consolidated in the Supreme Court of Judicature (Consolidation) Act 1925.

This provided in s 107:

Principal probate registry.

The principal registry of the High Court for the purpose of the exercise of the probate jurisdiction (in this Act referred to as “the principal probate registry”) shall be at such place in the County of London as His Majesty may by Order in Council from time to time appoint.’

Under that Act there are extensive provisions as to the powers of Registrars in the Principal Probate Registry and the District Registries within the probate jurisdiction. But there is no reference to the office or function of Registrar in Part VIII – Matrimonial Causes and Matters. There was no need to because, as we shall see, these matters were, and always had been, largely governed by rules rather than primary legislation.

In 1968, by virtue of the Matrimonial Causes Act 1967, county courts acquired divorce jurisdiction. Those county courts designated by the Lord Chancellor to do divorce work were called ‘divorce county courts’.

The rules

From 1858 until the coming into force of the Administration of Justice Act 1970, the rules as to the fundamentals remained constant throughout all their successive iterations. Proceedings (unless issued in a District Registry after that eventually became possible following the enactment of the Administration of Justice Act 1920)2 were issued out of ‘the Registry’, or ‘the Divorce Registry’, and by that was meant ‘the Principal Probate Registry.’ And the ‘Registrars’ of the Divorce Registry were those individuals who were the Registrars of the Principal Probate Registry.

Thus, the original Rules and Orders for the Court for Divorce and Matrimonial Causes provided:

55 The registry of the Court for Divorce and Matrimonial Causes, and the clerks employed therein, shall be subject to and under the control of the registrars of the principal registry of the Court of Probate, in the same way and to the same extent as the principal registry of the Court of Probate and clerks therein is and are.

56 The record keepers, the clerk of papers, the sealer, the ushers, and other officers belonging to the Court of Probate, shall discharge the same duties in the Court for Divorce and Matrimonial Causes, and in the registry thereof, as they discharge in the Court of Probate and the principal registry thereof.’

New Rules and Regulations came into force on 11 January 1866 (rr 1–174), with additions (rr 175–220) on various dates between 30 January 1869 and 20 August 1904. Rules 172 and 173 reproduced the substance of the previous rr 55 and 56. There was additional provision:

118 The registrars of the principal registry of the Court of Probate are to have the custody of all pleadings and other documents now or hereafter to be brought in or filed, and of all entries of orders and decrees made in any matter or suit depending in the Court for Divorce and Matrimonial Causes …’

With effect from 1 March 1924 the 1866 Rules and Regulations were replaced by the Matrimonial Causes Rules 1924 providing for the filing of documents in ‘the Registry’. Rule 80 carried forward the previous r 118, and r 95 the previous r 172 (originally r 55):

80 The Registrars of the Principal Registry are to have the custody subject to direction by the President of the Probate Divorce and Admiralty Division of all pleadings and other documents brought in or filed and of all orders and decrees made in any matter or suit.’

95 The Registry of the Court and the Clerks employed therein shall be subject to and under the control of the Registrars of the Principal Probate Registry.’

In due course the rules began to have specific definition provisions. Thus, in the Matrimonial Causes Rules 1944, r 3(2) of which required proceedings (unless issued in a District Registry) to be ‘issued out of the Divorce Registry’, r 1(3) defined ‘the divorce registry’ as meaning ‘the Principal Probate Registry’.

The final rules in force prior to the enactment of the Administration of Justice Act 1970 were the Matrimonial Causes Rules 1968, r 2(2) of which likewise defined the ‘divorce registry’ as meaning ‘the principal probate registry’.

The Matrimonial Causes Rules 1968 were also the first rules to give effect to the important changes introduced by the Matrimonial Causes Act 1967. They provided:

Interpretation

2(2) …

“divorce county court” means a county court so designated by the Lord Chancellor pursuant to section 1(1) of the Act of 1967

“divorce registry” means the principal probate registry

Application of other rules

3 Subject to the provisions of these rules and of any enactment, the County Court Rules 1936 and the Rules of the Supreme Court 1965 shall apply with the necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceedings pending in, a divorce county court and the High Court respectively.

County court proceedings in divorce registry

4(1) Subject to the provisions of these rules, matrimonial proceedings pending at any time in the divorce registry which, if they had been begun in a divorce county court, would be pending at that time in such a court shall be treated, for the purposes of these rules and of any provision of the County Court Rules 1936 and the County Courts Act 1959, as pending in a divorce county court and not in the High Court. …

(2) Unless the context otherwise requires, any reference to a divorce county court in any provision of these rules, or of the County Court Rules 1936 as applied by these rules, which relates to the commencement or prosecution of proceedings in a divorce county court, or the transfer of proceedings to or from such a court, includes a reference to the divorce registry.

Cause to be begun by petition

9(1) Every cause other than an application under section 2 of the Act of 1965 shall be begun by petition.

Presentation of petition

12(1) A petition may be presented to any divorce county court.’

Prior to 1971, the work of the Registrar of the Principal Probate Registry comprised matrimonial causes, some ancillary relief,3 some children’s work (but not wardship), and probate proceedings.

The Family Division of the High Court

In 1971 the Family Division came into being.

The Administration of Justice Act 1970, s 1 provided:

‘(1) The Probate, Divorce and Admiralty Division of the High Court shall be re-named the Family Division; and the principal probate registry shall be re-named the principal registry of the Family Division.

(2) There shall be assigned to the Family Division all causes and matters involving the exercise of the High Court’s jurisdiction in proceedings specified in Schedule 1 to this Act.

(3) Causes and matters involving the exercise of the High Court’s Admiralty jurisdiction, or its jurisdiction as a prize court, shall be assigned to the Queen’s Bench Division.

(4) As respects the exercise of the High Court’s probate jurisdiction –

(a) non-contentious or common form probate business shall continue to be assigned to the Family Divisional; and

(b) all other probate business shall be assigned to the Chancery Division.’

Schedule 1 assigned to the Family Division all matrimonial causes, proceedings under the Married Women’s Property Act 1882, all proceedings concerning a person’s matrimonial status, and all proceedings concerning children including wardship proceedings (but interestingly not proceedings under the inherent jurisdiction concerning adults – but that is another story).

This took effect on 1 October 1971 by virtue of the Administration of Justice Act 1970 (Commencement No 5) Order 1971.

This change, together with passage of the Divorce Reform Act 1969, the Matrimonial Proceedings and Property Act 1970 and their consolidation in the Matrimonial Causes Act 1973 led to iterations of the Matrimonial Causes Rules being issued in 1971, 1973 and 1977, all of which allowed matrimonial and ancillary relief proceedings to be issued and conducted in the PRFD ‘as in a divorce county court’, and which referred to the PRFD as ‘the divorce registry’ See, for example, the Matrimonial Causes Rules 1977, r 2 (interpretation) which stated:

‘“divorce registry” means the principal registry of the Family Division.

The successor to the Supreme Court of Judicature (Consolidation) Act 1925, namely the Supreme Court Act 1981, provided (as originally enacted) in s 89 and Sch 2, for the appointment of what were described as ‘the registrars of the Principal Registry of the Family Division’ and ‘the Senior Registrar of that Division.’

The Matrimonial and Family Proceedings Act 1984, s 42 repeated that rules of court may be made permitting matrimonial proceedings, as well as ancillary or related proceedings, to be commenced and conducted in the PRFD as in a divorce county court. Accordingly, the Family Proceedings Rules 1991 and the Family Procedure Rules 2010 duly allowed matrimonial and ancillary relief proceedings to be issued on that basis in the PRFD.

However, the Family Proceedings Rules 1991, in contrast to its predecessors, did not refer to the PRFD as ‘the divorce registry’ thus ending that nomenclature with which many pleadings, orders and forms had been habitually headed and endorsed. Indeed, the signage above the entrance to the South Wing of Somerset House, which had stated in gold lettering ‘THE DIVORCE REGISTRY’ for decades4 was changed in 1991 to say ‘THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION.’ Thus, that familiar name – the Divorce Registry – slipped quietly into history.

On 1 January 1991 Registrars became District Judges by virtue of the Courts and Legal Services Act 1990, s 74(1), which provided:

‘The offices of

(a) registrar, assistant registrar and deputy registrar for each county court district; and

(b) district registrar, assistant district registrar and deputy district registrar for each district registry of the High Court,

shall become the offices of district judge, assistant district judge and deputy district judge respectively.’5

Section 74(7) expanded the Matrimonial and Family Proceedings Act 1984, s 42 and provided that where a district judge of the PRFD was exercising jurisdiction in any matrimonial cause or matter which could be exercised by a District Judge of a county court, he shall have the same powers in relation to those proceedings as if they were a District Judge of a county court and the proceedings were in a county court.

This was repealed in 2014 on the establishment of the Family Court.

By virtue of the Constitutional Reform Act 2005, the Supreme Court Act 1981 was amended and renamed as the Senior Courts Act 1981. Section 89 and Sch 2 were amended to allow appointment to the offices of a ‘District Judge of the Principal Registry of the Family Division’ and the ‘Senior District Judge of the Family Division.’

In 1998 the PRFD moved to FAH ending a 139-year tenure at Somerset House.

It can therefore be seen that prior to the establishment of the Family Court the PRFD had a very substantial role. Its offices, handling both the non-contentious probate work (contentious probate cases having been transferred to the Chancery Division in 1971) and a mass of matrimonial and other family cases, were at FAH. Its judges sat at FAH and routinely tried there numerous ancillary relief and other family cases, as well as dealing with such non-contentious probate work as required judicial intervention.

The Family Court

By virtue of the Crime and Courts Act 2013, s 17 and Schs 10 and 11 the Family Court was established. A primary consequence was that the county courts lost their divorce jurisdiction. This great change took effect on 22 April 2014. The Family Procedure Rules 2010 were amended to remove all references to divorce county courts and to the PRFD being treated as such a court. The great bulk of the work done by the judges of the PRFD, including all matrimonial causes and ancillary relief, was transferred to the new Family Court, now sitting at FAH as the Central Family Court (CFC).

A residue of High Court work was not transferred to the new Family Court. This was laid out with clarity in Part A of the Schedule to the President’s Guidance: Jurisdiction of the Family Court: Allocation of cases within the Family Court to High Court Judge Level and Transfer of cases from the Family Court to the High Court (28 February 2018).6

Only those judges authorised to sit in the High Court can deal with this residue. At District Judge level this cohort includes those full time District Judges of the Family Court who are authorised to sit as District Judges in High Court civil proceedings (the former District Registrars) and those full time District Judges at the CFC who have been appointed Deputy District Judges of the PRFD. Also included, obviously, are those former High Court judges authorised under the Public Service Pensions and Judicial Offices Act 2022, ss 123 and 124 and Sch 3, and those Deputy High Court judges authorised under the Senior Courts Act 1981, s 9(4).

Amendments to the Family Procedure Rules 2010, consequential to the creation of the Family Court, dealt with appeals from District Judges of the PRFD. FPR PD 30A, paras 1.1, 2.1 and 2.2 provide that where a District Judge of the PRFD (including a Deputy, but not including the Senior District Judge hearing a financial case) has made a decision when sitting in the Family Court then the appeal lies to a judge of circuit judge level, but with power to elevate the appeal to High Court judge level where the appeal raises an important point of principle or practice or where efficient use of local judicial responses so requires. Where a District Judge of the PRFD has made a decision in the High Court the appeal lies to a High Court judge.

As a consequence of these reforms, there was a necessary change in the arrangements of the various court offices. The PRFD was divided into two parts. The part of the office dealing with probate remained for the time being at FAH. The part of the office dealing with High Court family work was relocated (together with all the files) to the office of the Clerk of the Rules in the Queen’s Building at the Royal Courts of Justice (RCJ). At the same time the CFC acquired, in common with all such courts, an office dealing with its work as part of the Family Court. The result of this was that, for the first time ever, the work of the PRFD was now split between two sites. Originally, it had all been at Somerset House. Since 1998 it had all been at FAH. Now it was split between FAH and the RCJ.

It should be noted that as part of these reforms, and the consequential re-organisation of the courts in London, the magistrates who had previously sat in the Family Proceedings Court at Wells Street now moved to FAH and sat in the CFC. FAH also became the home of the Court of Protection. These changes were reflected in a change to the signage displayed outside FAH. Previously it had read ‘Principal Registry of the Family Division / High Court / High Holborn’ and ‘Principal Registry of the Family Division / First Avenue House’. Now it was changed to read ‘Central Family Court / The Court of Protection’.

With the creation of the new Family Court, and the consequential re-organisation of family courts in London and, in particular, the division of the work previously carried on at FAH between the new CFC sitting at FAH and the new West London and East London Family Courts, the position of the District Judges of the PRFD and the Senior District Judge of the Family Division became increasingly anomalous. There was an issue (not resolved at the time) as to whether the District Judges of the PRFD were able or could be required to sit anywhere other than at FAH; a state of affairs incompatible with the effective arrangements for the new Family Court in London. And the continuance in office of the Senior District Judge of the Family Division sitting as a judge at the CFC was problematic given the structure and arrangements appropriate there, as elsewhere, in the new Family Court.

Accordingly, no new appointments to these offices were made and when the existing office holders retired or (as in many cases) were promoted they were replaced not by District Judges of the PRFD but by District Judges of the Family Court.

There are now no District Judges of the PRFD and no Senior District Judge, all having now retired or been promoted. There remained, and still remain, in post, a small number of Deputy District Judges of the PRFD who had been appointed prior to the creation of the Family Court. Further, as mentioned above, in November 2020 the President appointed all the full-time District Judges working in the CFC at FAH as Deputy District Judges of the PRFD, thereby enabling them to do all the work laid out in the President’s Guidance that must (or can) be done in the High Court. In this way the problem whereby a district judge at the CFC could not simultaneously hear cases under the Children Act 1989, Sch 1 and TOLATA 1996, was resolved.

With effect from 2 November 2020, by virtue of the Non-Contentious Probate (Amendment) Rules 2020 the non-contentious probate jurisdiction became entirely digital and online, and at that time the probate office at FAH was closed.

The PRFD now

Thus the PRFD lives on, albeit in a much-diminished form when compared to its heyday. As mentioned above, it is referred to as such in the Senior Courts Act 1981,7 in the Family Court (Composition and Distribution of Business) Rules 2014 (SI 2014/840), and in no fewer than 23 individual rules in the (amended) Family Procedure Rules 2010.8

The PRFD has an office at the Queen’s Building where proceedings that can or must be issued in the High Court are processed. It has a dedicated judiciary – the Deputy District Judges of the PRFD. Its work at District Judge level is currently done at FAH.

In addition to acting as the court office for the Family Division in London, the PRFD has the obligation to maintain:

(1) the central index of decrees absolute (r 7.35);

(2) the register of wards of court (r 12.38);

(3) the central index of decisions registered under the Child Abduction and Custody Act 1985, s 16 (r 12.56);

(4) the register of all applications and requests for transfer of jurisdiction to or from another Hague 1996 Contracting State (r 12.61); and

(5) the central index of judgments recognising orders made under the 1996 Hague Convention (r 31.3).

Number 1 is maintained by and at the CFC on behalf, and subject to the control, of the PRFD, but not always infallibly – see Power v Vidal [2019] EWHC 2101 (Fam) where the office copy of the decree absolute had been lost by the court and there was no trace of it on the index.

Numbers 4 and 5 are maintained in electronic format at the office of the Clerk of the Rules in the RCJ.

Number 3 relates to the registration of decisions made pursuant to the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children signed in Luxembourg on 20 May 1980. This Convention is now totally obsolete having been superseded by the 1996 Hague Convention. It is not believed that any order has been made under the European Convention for over 25 years. One assumes that the index has therefore fallen into desuetude.

As for Number 2 each author has made many orders both warding and de-warding children but neither is aware of any such order having been recorded in the register of wards of court. The Clerk of the Rules is not aware of the existence of any such register. It too has likely fallen into desuetude.

In colloquial usage, a Deputy District Judge of the Principal Registry sitting in the Family Division of the High Court at FAH is still sometimes described as ‘sitting in the PRFD’, although it may be noted that a High Court Judge sitting in the Family Division is not, and never has been, so described. Whether that means that FAH is properly described today (after the departure of Probate) as the PRFD, is however, a different matter. In our view it is no longer properly so described. No part of the offices of the PRFD is any longer to be found at FAH. So far as concerns family work, the offices of the PRFD are at the RCJ. The only court offices at FAH are the offices of the Family Court (quite distinct from the offices of the PRFD) and the offices of the Court of Protection. Inveterate usage may perhaps be explained (though it cannot be justified) by the old ambiguity about what is meant by a court: is it an office, is it the judge, is it the place where the judge sits?

Moreover, the point is not devoid of practical significance. In our view a Deputy District Judge of the PRFD is not confined to sitting at FAH. So, for example, if it became convenient to try TOLATA 1996 cases at either the East London or the West London Family Court, there would, we believe, be no obstacle to the appointment of one or more of the District Judges of the Family Court sitting there to be, as in the case of the District Judges at FAH, in addition a Deputy District Judge of the PRFD.

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