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
to clarify.
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
sculptors.
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
Parliament’s intent.
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
somethin’'.
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
See for example, the President
in
Re R (A Child) 2014 [2014] EWCA Civ 1625:
'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
case.”'
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
1989:
'A Court may only make a care order or a
supervision order if it is satisfied –
(a) that the child concerned is suffering, or is
likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is
attributable to –
(i) the care given to the child, or
likely to be given to him if the order were not made, not being what it would
be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental
control.'
One of the
first pieces I wrote as a blogger (three years ago, almost to the day) was to take all of the
case law authority refinements to that test, and write out a new s 31, taking
into account what the clarifications and refinements said.
And it ended up moving from a
snappy 87 word definition to nearly 700 words. (It has probably moved again in
the last 3 years.)
‘
A Court may only make a care order or a
supervision order if it is satisfied [on the balance of probabilities, with the
burden of proof falling upon the applicant local authority] –
(a) that the child concerned is suffering [at the
time of the hearing of the application for the care or supervision order, or at
the time when the local authority initiated the procedure for the protection of
the child concerned provided those arrangements have been continuously in place
until the time of the hearing – to cover the situation where a child is
voluntarily accommodated before the application is made and would no longer be
currently suffering significant harm at the time the application were made, it
is possible to consider later acquired information as to that state of affairs
at the relevant date but not evidence of later events unless these events can
be used to show the state of affairs at the relevant date], or is likely to
suffer [likely meaning having a real possibility, a possibility that cannot
sensibly be ignored having regard to the nature and gravity of the feared harm
in the particular case, the seriousness of the allegations or the consequences
having no impact upon the standard of proof to be satisfied, and the facts upon which that prediction of
likelihood is based having been proven to the balance of probabilities to have
actually occurred, it not being sufficient that those facts may have occurred
or that there is a real possibility that they did, and establishing that one
child did suffer significant harm does not automatically establish that another
child of the same family is likely to suffer significant harm, note also that
the Court is not limited to looking at the present and immediate future but may
look at the long-term future], significant harm [the harm must be significant
enough to justify the intervention of the State and disturb the autonomy of the
parents to bring up their children by themselves in the way they choose. It
must be significant enough to enable the court to make a care order or a
supervision order if the welfare of the child demands it; society must be
willing to tolerate very diverse standards of parenting, including the
eccentric, the barely adequate and the inconsistent, it is not the province of
the State to spare children all the consequences of defective parenting; the
harm must be more than commonplace human failure or inadequacy, where
considering whether a child’s health or development has been significantly
harmed one has to compare with that which could be reasonably expected of a
similar child; and
(b) that the harm, or
likelihood of harm [see everything above], is attributable to –
1. the care given [which can go beyond physical
care and includes emotional care] to the child, or likely to be given to him if the order were not
made, not being what it would be reasonable to expect a parent to give to him
[it is not necessary that there be culpability on the parents part who may be
trying their hardest yet failing to reach the required standard of care and
thereby causing significant harm, also this test can be met in a circumstances
where one parent has caused significant harm and the other has not, or where a
parent and a person other than a parent, such as a childminder, cannot be
excluded from having perpetrated an injury to the child where the identify of
the perpetrator cannot be established on the balance of probabilities even
where there is only a possibility that the parents themselves were responsible
for injuries that the child had sustained,
regard may also be had to whether the failure of a local authority to
provide the necessary statutory support has contributed to this]; or
2. the child’s being beyond parental control [this
must have caused the significant harm or created the risk of such harm, there
is no requirement to show some failure on the part of the parent in order to
establish that a child is beyond parental control, and parental control is
something which will no doubt vary with the age of the child]'
