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View from the Foot of the Tower: If I was a sculptor, but then again no
Sep 29, 2018, 21:39 PM
family law, case law, statute, reform, children act 1989
As you might have detected, the author of this piece likes case law – perhaps to a point which is beyond the lethal dose for most well-balanced adults. With that in mind, the central question of this column might seem unusual.
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As you might have detected,
the author of this piece likes case law – perhaps to a point which is beyond
the lethal dose for most well-balanced adults. With that in mind, the central
question of this column might seem unusual.
'Has case law in family cases
been helpful for families, or is it largely a waste of time?'
Judges end up having a twin
function in our system. The first function, and the one which occurs most of
the time is in marshalling the evidence and hearing it and reaching a decision,
applying the law. The second function,
which tends to fall to the Court of Appeal and sometimes High Court Judges, is
to take a piece of statutory law which is opaque or ambiguous or uncertain, and
As Sir James Munby, President
of the Family Division has said: 'Under our system Parliament makes the law in
passing a statute. Parliament, I emphasise; not the Government. It’s Parliament
that legislates. It is for the judges to decide what the statute means.' (President's Family Justice Reforms press conference, 30 April 2014)
Parliament pass the Act, in
our case the Children Act 1989, and thereafter, where interpretation and
clarification is needed, judges provide it.
The Children Act 1989 is a
gleaming block of marble, and over a period of years, the senior judiciary have
worked upon it with tiny hammers and tiny chisels to produce a sculpture,
gleaming and beautiful. Over time, the
flaws in the original work have been corrected and remedied by the careful hand
of the sculptors, even correcting tiny imperfections caused by previous
In short – the Act has got
BETTER over time, as a result of case law.
That’s one argument. An
alternative is that the Act is a gleaming and perfect block of marble and that
every time a sculptor acts (in the form of a case law authority) what they are
actually doing is detracting from the original intention, and getting further
and further away from what Parliament intended.
Every blow of the chisel removes something of Parliament’s intent. Case law is judicial interference with
In short – the Act has got
WORSE over time, as a result of case law.
A third possibility is that
the block of marble ought to be left alone as much as possible, but where there
is an obvious flaw – a crack, or a sharp spur sticking out at an edge, then the
role of case law is to fill that crack, or to file away that spur, so that the
block of marble as a whole retains its integrity.
In short – the Act is largely
as it was when Parliament passed it, with some small improvements.
The senior judiciary have
those tiny hammers and chisels, and they are very skilled at using them. Does
it become an overwhelming temptation when faced with a block of marble to start
sculpting it? As Bob Dylan once sang: 'A lot of people don’t have much
food on their table/ But they got a lot of forks ’n’ knives/And they gotta cut
Once you’re holding that
chisel, does every problem become one that is best solved with a chisel?
In thermodynamics, there is a
principle called ‘entropy’ that says that over time, everything tends to become
more chaotic and disorganised as more time passes. Everything reverts to
chaos. Are the precedents an attempt to
stave off that process of chaos, or are they part of the process?
From time to time, we see the
senior courts being robust on there being no need to microscopically examine
every single word and layer definition upon definition
'What is meant by "realistic"? I agree with what Ryder
LJ said in
Re Y, para 28:
“Realistic is an ordinary English word. It needs no
definition or analysis to be applied to the identification of options in a
That makes sense to me – if
you aren’t capable of understanding the word ‘realistic’ then every word in the
judicial definition of ‘realistic’ is going to be just as troublesome and you
end up stacking definition upon definition.
[Douglas Hofstadter once took the dictionary
definition of love, and rewrote it giving definitions for all of the words in
the original definition, then rewrote it a third time with definitions for
those definitions. And when you looked
at the very long third definition, whatever you might have guessed it was
describing, you would not have guessed ‘love’.]
But then this is the very
same judge who gave us a definition of ‘necessary’ and the very same Court of
Appeal who have been tying themselves in knots over ‘nothing else will do’.
Let me give you a concrete
example of how case law has taken a string of ‘ordinary English words’ and
assumed that each of them need incredibly nuanced and subtle definitions, to
the point where our final version of a statutory test used every single day in
the family Courts has moved from something that makes intuitive sense to
something that resembles the preamble to an international treaty.
Section 31 of the Children
Act 1989 sets out the test which the State, in the form of a local authority,
have to meet if the court is to make a care or a supervision order. The test is
expressed in words which have an everyday common-sense meaning, and in a
sentence structure which can be understood with a modicum of effort.
Section 31(2) Children Act
Is that better? Is it easier
for lawyers to understand? Is it easier for lawyers to explain to parents? Is
it less likely that a judge will stumble and make an error?
Were these clarifications and
refinements really necessary, or were most of the cases that resulted in these
pronouncements just brought about by people trying smart-alec pedantic
arguments that could have just been crushed by courts saying that the statute
was to be interpreted in common-sense ways?
Even more bluntly than that –
have these changes helped children? Have they kept children out of care
proceedings who were wrongly coming into them before? Are the children who need to be in care
proceedings still coming into them?
The same sort of thing has
happened with almost every aspect of the Children Act 1989.
The law on designated
authority (which of two local authorities
is going to need to issue the care proceedings and be responsible for any s 31
order made) has reached a point where the clarifications and guidance provided
by the judiciary, far from making the statutory test easier to follow has
prompted more and more argument with it almost being impossible for one local authority
to tell the other ‘Look, it’s clear, it is you’ without the other responding ‘No,
it’s clear, it is you’.
The law on making someone a
party to care proceedings, where there is a statutory test set down, but the
case law has flitted between guidance that the person seeking to be joined as a
party should have ‘an arguable case’, a ‘solid’ case, a ‘case that is not
merely fanciful’, a ‘winnable case’ and currently guidance that judges should
simply cut through all of that and go back to the statutory test.
On joint residence orders
(which we now even have to call by a different name), where the bare Act would
simply tell a judge to look at the welfare checklist and to make the order that
best meets the child’s welfare, but the authorities have danced around as to
whether they are not to be entertained, or to be exceptionally rare, or the
best thing since sliced bread, or right in some cases and currently ‘a rare order and only to be contemplated
where there is some confidence that it will not work to the disadvantage of the
Section 98’s protection
against self-incrimination was a markedly bigger protection for parents than it
is today, the case law has undoubtedly eroded the protection that Parliament
had given parents.
Section 38(6) – a clause put
into the Act to ensure that local authorities would not (as happened in the
Cleveland scandal) be having children examined by paediatricians without the
Court approving this, which ended up being a justification for residential
assessments that cost £30,000 or more, and have ended up with a string of
judicial authorities, with the final say of the House of Lords in Kent County Council v G 2006 which
re-set to the actual purpose and wording of the statute being largely ignored
because lawyers don’t like what it says.
The gloss on the statute tastes better to lawyers than the bare statute
itself, so the gloss remains the working principle even after the House of
Lords removed it from the statute’s lips.
Have any of these
pronouncements and refinements worked better than judges simply being told
‘apply the statutory test, apply the welfare checklist, remember the no order
principle and that the child’s welfare is paramount’ would have?
If we are to believe the
narrative arc of precedents being sculptors who are improving and enhancing the
law, then one would have to assume that parents who were coming before the
Courts in 1991 were getting worse treatment than they are today, before the
High Court and Court of Appeal had come to the rescue with all of the guidance
and refinement to the bare statute.
It seems to me that children
in 1991 were coming into care for the same sort of reasons as today (although
with a lot less evidence about Facebook status, and more cider than heroin) and
that parents were having much the same experiences of the courts as they do
today. Even the Human Rights Act doesn't seem to have made that much difference
to procedure and decisions on the ground.
If anything, we've had more children coming into care proceedings, more
children being removed and more children being adopted since the law placed a
requirement on the state and judges not to interfere with private and family
life unless it was necessary and proportionate.
[Annoyingly, the statistics pre-2005 aren't recorded
in the same way, making it harder to compare things pre-1998 Human Rights Act
with post, and give the objective evidence for that assertion. But I am
prepared to buy a hat and eat it if someone provides the evidence that I’m
wrong about this claim.]
Of course the role of the
Court of Appeal is not merely to refine the law, and its role in staying the
hand of judges who make poor decisions or give poor reasons for those decisions
is vital. But might we all be better off if the Court of Appeal were largely to
confine itself to that role, rather than giving pronouncements as to
interpretation of statutory language that are usually ‘ordinary English words,
that needs no definition or analysis’?
Do the semantic arguments
divert brain-power and scarce resources from actually focussing on the evidence
in the case, the merits and arguments of the various options available, and a
common-sense spirit of the Act be sufficient to resolve any grey areas?
Could we learn something from
William Lamb, Lord Melbourne, who became our Prime Minister in 1834 (despite
thinking that it would be a frightful bore and nearly turning down the
opportunity because it sounded like too much paperwork) and who was best known
for his philosophy of ‘why not leave it alone?’