Are the Family Procedure Rules 2010 an Alsatian mongrel of dubious legality, asks David Burrows
In Richardson v Richardson [2011] EWCA Civ 79, [2011] All ER (D) 86 (Feb) Munby LJ—who as Sir James Munby P presides over the introduction of the new family court—explained that the Family Division is “part of the High Court. It is not some legal Alsatia where the common law and equity do not apply”. (“Alsatia” was an area outside the City of London between the Temple and St Brides’, where authority after the Reformation was ill-defined. The area could provide immunity from arrest. It became a refuge for criminals and malcontents; and was known as Alsatia, after Alsace, then in the throes of the Thirty Years War.)
Indeed: judges apply the common law on the final hearing of cases. Of procedural law, the Family Procedure Rules Committee (FPRC) is seeking to do the opposite. Their Family Procedure Rules 2010 are steadily amended, thus to Alsatianate procedures from the rest of civil proceedings; and often with dubious legality. To describe the rules as mongrel does not strain the metaphor:
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