Judge’s subservience to Parliament and the government


High court’s powers subject to decisions of another public body


The Conservative manifesto caused entirely understandable anxiety amongst many human rights lawyers at its threats to consider reform of judicial review and Human Rights Act 1998; and similar threats are expected in today’s Queen’s speech. From a source on the right wing of the Tory party legislature wrecking is to be expected. I cannot be complacent, but I do remind would-be reformers to bear in mind – however they may threaten as bad losers from the Miller litigation – that there are already many areas of law where judges recognise their subservience to Parliament’s will. In my case examples come from family law; but they are essentially from administrative law (ie judicial review) areas.


In family – and other civil – courts judges are already restricted by administrative law constraints. This applies, for example, where local authority children’s or housing departments are concerned; or where Legal Aid Agency, Home Office and Child Maintenance Service are involved in families’ litigation. And of course, the embargo on child periodical payments imposed by Child Support Act 1991 s 8 is one of the better known – and least subtle – of Parliament’s limitation on family courts.


Limitations on wardship and local authority care of children


In Re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 and the earlier A v Liverpool City Council [1982] AC 363, [1981] 2 WLR 948 family members attempted to challenge operation of a care order (when procedure and legal aid rules were very different than post-CA 1989) by wardship. Lord Scarman spoke emphatically (at 797):


… The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority…. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.


The importance of the A v Liverpool principle survives today. In Re H (Children) [2018] EWFC 61, [2019] 1 FLR 792 Sir James Munby (then as a High Court judge), identified the principle in a case where there was delay in prosecution of parents in parallel care and criminal proceedings.


[20] The starting point is the fundamental point of principle articulated and elaborated in a well-known series of cases in the House of Lords and, more recently, the Supreme Court: A v Liverpool City Council [1982] AC 363, In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791, Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413…. That principle, as explained by Lord Scarman [in the passage cited above].


The same can apply in housing law. In Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413 a family court had tried to use a shared residence order to put pressure on a housing authority to provide housing for both parents. The House of Lords said this was not permissible. The existence of a shared residence order was a relevant factor, but it was not determinative.


The point came back in the family courts more recently in F v M & Anor [2017] EWHC 949 (Fam), [2018] 2 WLR 178, [2018] 1 FLR 1217 where in a child arrangements order Hayden J was considering a decision on asylum made by the Secretary of State for the Home Department (the ‘Home Office’). He explained the mother’s position in this country as follows, and his powers to differ – if he sought to do so – from the decisions of officials within the Home Office. He explained this (by quotation from Lord Scarman in Re W (above)) as follows:


[41] … The determination of the refugee status of any adult or child falls entirely within “an area entrusted by Parliament to a particular public authority”. In this case the public authority is the [Home Office].


Funding of family proceedings


Can the court compel the state or a local authority to fund family proceedings? Finance questions arise, broadly, in three ways:


  1. Funding – How proceedings are paid for is generally a private issue between a party and his or her lawyer; but it may involve legal aid or a claim against the other spouse in matrimonial proceedings (Matrimonial Causes Act 1973 s 22ZA (legal services order)).
  2. Expenses – The court may be asked to adjudicate between parties as to who is to pay expenses (eg for an expert’s report: JG v Lord Chancellor and ors [2014] EWCA Civ 656, [2014] 2 FLR 1218).
  3. Costs – Costs is what is paid as between parties by one to the other by court order.


In HB v A Local Authority & Anor (Wardship – Costs Funding Order) [2017] EWHC 524 (Fam), [2018] 1 FLR 538 MacDonald J considered whether he had power, in the inherent jurisdiction of the High Court, to order a local authority to pay a mother’s legal expenses where it had warded two children where their mother was believed to be planning to go to Islamic State). Because it was wardship the mother outside the automatic legal aid scheme for CA 1989 Pt 4; and she was not financially eligible. Accordingly she applied under the inherent jurisdiction of the High Court judge for a costs funding order against the local authority requiring it to fund her legal advice and representation.


MacDonald J concluded:


[94] I am satisfied that the inherent jurisdiction of the High Court does not give the court the power to require a local authority to incur expenditure to fund the legal representation of a litigant in wardship proceedings who has been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament.


He buttressed what he had said by reference also to Re K & H (Children) [2015] EWCA Civ 543, [2016] 1 FLR 754 (also Re K [2015] 1 WLR 3801):


[97] Those well-established principles [as to state funding], as articulated by Lord Dyson MR in Re K [2015] 1 WLR 3801, are clear. Authority for public expenditure requires clear statutory authority, which authority must itself be in clear, express and unambiguous language. Within this context, a general power or duty cannot be used to circumvent a clear statutory code. Where Parliament has made detailed provisions as to how certain statutory functions in respect of legal funding are to be carried out, there is no scope for implying the existence of additional powers which lie wholly outside the relevant statutory code.


MacDonald J, by reference to Lord Dyson MR, stresses the point – there in relation to legal aid: that once Parliament has laid the ground for an administrative body to deal with an issue then the court cannot, in any inherent jurisdiction, seek to challenge the role of the administrator, save by properly issued and pleaded judicial review application; but that is a separate forensic question.


David Burrows

19 December 2019


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