Creating ‘law’ by practice direction and guidance
In ‘“Guidance” as law’ , for ICLR, I considered the status of judicially-issued ‘practice guidance’ as a form of law-making. Last month saw two instances of what practice guidance and practice directions mean in the hierarchy of what is authoritative law (ie the common law (ie judge-made law) and statutory law). These examples maintain my criticism of practice directions and practice guidance – especially practice guidance – as a means of creating forms of law.
First ‘hierarchy’: I shall assume in what follows that primary law consists of (1) the common law, which is created by High Court (and higher court) judges and can only be altered by (a) statute law or (b) a decision of an appeal court (or in the case of a Supreme Court decision, by a later Supreme Court decision); (2) statute law (ie Acts of Parliament); and (3) secondary legislation, delegated to a minister or other statutory body by a statute (an example of this will be seen shortly in delegation of rule-making to Family Procedure Rules Committee).
There are other forms of quasi legislation: described by Administrative Law (2014) Wade & Forsyth (11th Ed) at p 732, as ‘a jungle of quasi-legislation’: practice directions, practice guidance, protocols and so on. This article deals with examples from this ‘jungle’. And always it must be recalled that regularly – as in the NY case considered below – the Supreme Court over the past four years has queried the vires and correctness of certain practice directions (see eg Wyatt v Vince  UKSC 14,  1 WLR 1228,  1 FLR 972; Sharland v Sharland  UKSC 60,  2 FLR 1367).
Practice directions consistent with law: NY and the Supreme Court
Practice guidance, the quasi-legislative form adopted so often by Sir James Munby as Family Division President, is considered later in this article. Neither practice guidance nor practice directions can override existing primary law where they are shown to be wrong (see U (A Child) v Liverpool CC sub nom KU (A Child) v Liverpool CC  EWCA Civ 475,  1 WLR 2657 (below)). A practice direction can only regulate the way the law proceeds; and if it cannot be supported (ie explained by) by primary law it is likely to be incorrect.
This proposition can be illustrated by NY (A Child)  UKSC 49 (30 October 2019), a mother’s successful appeal against a return order of the parties’ nearly three year old child to Israel. The judgement was of Lord Wilson (with whom Lord Hodge, Lady Black, Lord Kitchin and Lord Sales agreed). The mother’s argument had drawn attention to a practice direction in Family Procedure Rules 2010 (FPR 2010) PD12D.
PD12D para 1.2 emphasises ‘the width of the inherent jurisdiction’, said Lord Wilson, and includes:
The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common – … (e) orders for the return of children to and from another state.
The mother, said Lord Wilson (at ), focusses on PD12D para 1.1 which says:
It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989. (Emphasis supplied)
Lord Wilson considered the force of practice directions. The rules themselves (ie FPR 2010) are made pursuant to Courts Act 2003 s 75(1) and so have legislative force. By contrast, said Lord Wilson:
… Practice directions, even including those which are stated to supplement the 2010 Rules, are not made pursuant to that or any other statutory authority. As Brooke LJ said in U v Liverpool City Council (Practice Note)  EWCA Civ 475,  1 WLR 2657, at para 48: “… 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.”
So was ‘the categorical instruction in [PD12D para 1.1] wrong?’ To answer this Lord Wilson reflected on the pre-Children Act procedures for using wardship to bring a child into care, and contrasted this with the ‘one of the major achievements of the 1989 Act was to streamline the procedure for ordering a child to be placed in the care of a local authority’ and the inhibition against this in CA 1989 s 100(2) (inherent jurisdiction not to be used to place a child in care). His view of the significance of this (at ) was that Parliament ‘by contrast [with s 100], nowhere sought to preclude exercise of the inherent jurisdiction so as to make orders equivalent to those for which sections 8 and 10 of it provide, including specific issue orders’.
There was no statutory provision ‘which the instruction in PD12D para 1.1 could be said to reflect’; so the Supreme Court should go on to ‘turn to consider case law’ (at ). None could be said to support the practice direction. Lord Wilson therefore concluded that para 1.1 ‘goes too far’ and was too prescriptive. An applicant was entitled to apply, in appropriate cases, under CA 1989 Pt 2 (for a specific issue order) or under the inherent jurisdiction:
 … There is no law which precludes the commencement of an application under the inherent jurisdiction unless the issue ‘cannot’ be resolved under the 1989 Act. Some applications, such as for a summary order for the return of a child to a foreign state, can be commenced in the High Court as an application for the exercise of the inherent jurisdiction. But then, if the issue could have been determined under the 1989 Act as, for example, an application for a specific issue order… will need to be addressed….
The practice guidance format has been taken up by the new Family Division President, Sir Andrew McFarlane P. His recent ‘President’s guidance as to reporting in the family courts’ dated 3 October 2019 had a five month gestation period, but still emerges in the undemocratic form of ‘President’s guidance’. With the greatest respect to Sir Andrew, it contains – it seems to me – a number of errors of law (for a commentary see ‘Guidance to “reporters” on varying reporting restrictions orders’ : a summary of that commentary follows).
The guidance deals with how ‘reporters’ may apply to vary reporting restrictions orders (ie orders made by the court to restrict them, or publicity in general, in the reporting of proceedings in family proceedings courts: RROs). It nominally applies to all family cases ‘in circumstances where a reporter attending court may wish to apply to vary reporting restrictions in a case before the [family courts]’ (para 1); though its references to eg Administration of Justice Act 1960 (AJA 1960) s 12(1)(a) (contempt for reporting of children proceedings) suggest it is aimed mostly at children proceedings. Its aim is ‘to assist the court, the parties and the media in circumstances where a reporter attending court may wish to apply to vary reporting restrictions’ in family courts (para 1).
A procedure for release or varying reporting restrictions orders
The guidance then goes on to tell the reporter – a journalist or ‘legal blogger’ – what should formally be done to vary or release a RRO. It tells journalists what they may get away with in terms of application to the court; and continues with guidance given by Sir Andrew as to how, informally, to apply for variation. Judges, he says, should be ‘astute to assist reporters’ seeking to attend a hearing, or to relax reporting restrictions, and should provide them with relevant contact details of the court office, the judge’s clerk and the parties where requested. At the start of a hearing attended by a reporter the judge should enquire if a RRO variation application is to be made; and, if there is none at that stage, invite ‘the reporter’ to alert the court if the situation changes.
This passage indicates the weakness of the ‘guidance’. Where does the reporter stand if the judge will not here him or her, or fails to follow the guidance? How formally, and to whom, can the reporter apply (eg by FPR 2010 Pt 18 application in the proceedings in question). Even a practice direction put out by Family Procedure Rules Committee (FPRC) would have been stronger – and perhaps clearer – than this.
Better still, surely, an amendment to the rules setting out procedure on this important point? None of this has the force of law; and it appears to have been done in this way to avoid the democratic control and assistance of FPRC.
Costs and President’s guidance
This guidance applies to all forms of family proceedings (not just to children proceedings). Sir Andrew’s guidance on costs is therefore striking:
16 Finally, in seeking to vary/lift reporting restrictions, the standard approach as to costs in children cases will apply and a reporter, media organisation or their lawyers should not be at risk of a costs order unless he or she has engaged in reprehensible behaviour or has taken an unreasonable stance.
Three of the more celebrated recent cases on reporting restrictions orders and attendance at court by media representatives since the new scheme came in, are Spencer v Spencer  EWHC 1529 (Fam),  2 FLR 1416, Munby J (brother of Lady Diana), Cooper-Hohn v Hohn  EWHC 2314 (Fam),  1 FLR 19, Roberts J and Appleton & Gallagher v News Group Newspapers Ltd & PA  EWHC 2689 (Fam),  2 FLR 1, Mostyn J (Liam Gallagher). They were not, of course, ‘children cases’ at all. I do not know what any order for costs was, but I doubt there was a ‘standard’ approach.
Orders for costs are very rare in children proceedings, as between private parties (eg parents) or if a local authority applies for a care order. But what ‘standard’ rules apply for media representatives and their employers in the generality of family proceedings; or, indeed, in children proceedings? The general rule is that costs are in the discretion of the court, save where statute or a rule says otherwise (Senior Courts Act 1981 s 51(1)). Costs are generally paid by the unsuccessful party (ie the ‘reporter’ if a reporting restrictions order is not varied, and the point is argued in court). ‘President’s guidance’ is neither rule nor statute. It can bind no party nor any judge.
Given that the applicant for the variation is generally a commercial body – not a parent or local authority caring for children – it seems likely, save where a variation is agreed, that a issues of costs will arise in contested RRO cases, especially in non-children family proceedings.
Open justice and regulation of reporting restrictions
In terms of procedure generally, and of costs in particular, the ‘reporter’ who is concerned with this guidance, is entitled to ask to what extent Sir Andrew’s ‘guidance’ does truly represent the law; and insofar as that reporter wishes to follow it, how does he or she urge in on the reluctant Family Division or Family Court judge, district judge or bench of magistrates.
It is important that family courts be properly and fairly opened up; but given that open justice is so pre-eminently a common law doctrine surely primary legislation should be made – at least by court rule – to establish how reporting restrictions are to be regulated.