In his exclusive online series David Burrows continues to puts the new family court under scrutiny & assesses its ability to deliver justice
Nothing said here is affected by the coming into operation of the family court; though if law-making of dubious legality (as explained here) continues the new court risks being mired (a word used here deliberately) in increasing depths of uncertainty.
The hierarchy of law-making is: statute law, the common law (including the High Court’s inherent jurisdiction), and delegated legislation. The common law can only be overridden by express statutory provision. Statute law can delegate law-making powers to administrators (eg rule-makers), who are accountable to the courts in judicial review. Judges (as administrators) can work with the rule-makers; but they only provide guidance, outside their decision-making role (ie not in connection with a case), in the rare Bovale circumstances explained below.
In family proceedings, recent quasi-judicial (or administrative) law-making has included:
- The President’s Transparency in the Family Courts: Publication of Judgements: Practice Guidance of 16 January 2014 (in effect from 3 February 2014) (“the Guidance”).
- Guidance issued by Mr Justice Mostyn on Imerman documents:
