Guidance on interim family proceedings orders
In my earlier note President’s Guidance on interim orders: how lawful? (https://dbfamilylaw.wordpress.com/2014/10/14/presidents-guidance-on-interim-orders-how-lawful/) I ended on a slightly lame note. I said that if the guidance does not comply with the law or with existing procedural rules and practice directions it is ‘unlikely to be lawful’. It should only be followed so far as it is consistent with the rules and law.
I did not answer my own question, in the title referred to above: how lawful is the practice guidance; and how lawful is any practice direction or guidance if not in accordance with higher statutory or regulatory authority? I was dealing with a Practice Guidance dated 13 October 2014 issued by Sir James Munby P and entitled: Family Court – duration of ex parte (without notice) orders (the PG). I mentioned that the PG does not obviously – or perhaps at all – refer to the existing procedural rules, namely Family Procedure Rules 2010 Parts 10, 11 and 20 (especially r 20.4) and PD20A (especially para 4).
Inconsistent practice guidance: ‘no authority’
I explained why, in a number of respects, the PG did not seem to comply with FPR 2010. So far as the guidance overrides, or is inconsistent with, the statutory instrument (FPR 2010) it carries no authority.
This can be said with confidence by reference to the words of Brooke LJ in KU (A Child) v Liverpool CC  EWCA Civ 475(see italicised passage below):
 The status of a practice direction has been authoritatively delineated by Hale LJ in Re C (Legal Aid: Preparation of Bill of Costs)  1 FLR 602 at para 21, May LJ in Godwin v Swindon Borough Council  EWCA Civ 1478 at , and Dyson LJ in Leigh v Michelin Tyre plc  EWCA Civ 1766 at -. It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all (italics added).
KU v Liverpool concerned a practice direction which did not accord with a costs rule in CPR 1998. A practice direction must be approved by the Lord Chancellor; or, in the case of family proceedings, by the Lord Chief Justice. The assertion of Brooke LJ applies even more so to practice guidances, which go through no approval process.
Of rules the position, incidentally, is much the same; though rules are made by a committee (and should be so made, in the case of FPR 2010, in accordance with Courts Act 2003 ss 75-76) and are laid before Parliament. In the case of rules they must comply with the empowering statute. In Jaffray v The Society of Lloyds  EWCA Civ 586, Buxton LJ explained this:
 … The CPR, being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique  AC 602 at p 628. And quite apart from that general rule, it is apparent from the wording of CPR 52.17(1) (which speaks of the jurisdiction not being exercised unless various conditions, including avoidance of real injustice, are fulfilled) that, as the helpful commentary in vol 1 of Civil Procedure explains, it was passed to limit, and not to extend, the operation of the supposed jurisdiction under Taylor v Lawrence.
Practice guidance: Bovale ‘gap’ guidance
So when is it appropriate to issue practice guidance? This was explained by the Court of Appeal in Secretary of State for Communities and Local Government v Bovale Ltd and anor  EWCA Civ 171. Only if a judge in the course of giving judgement found that there was a gap in the rules could additional guidance be provided. (An excellent example of this in practice can be seen in A Local Authority v DG & Ors  EWHC 63 (Fam), where Keehan J gave notice of his intention to issue a ‘gap’ direction as part of his judgement, and gave everyone in court a chance to make submissions).
Subject to the making of ‘gap’ directions, necessary to the particular issue in the case, the proper procedures for amending rules or issue of a practice direction should be followed, says Bovale. Perhaps to avoid practice errors which seem to emerge from the 13 October 2014 PG, the President could confer with interested groups such as the Law Society or the Family Law Bar Association before asking the Lord Chief Justice to approve his drafting.
In the case of the particular issue here: the President need only have referred the magistrates who raised the question to FPR 2010 Parts 10, 18 and 20 and to eg the comments of Ward LJ in Horgan v Horgan  EWCA Civ 1371. For good measure and a little more background (including references to National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica)  UKPC 16) the magistrates’ legal advisers could have been referred to Family Court Practice 2014.